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B T THE SAME A UTHOE. 

ANCIENT LAW. Its connections with the Early 

History of Society, and its Relation to Modern 

Ideas. 8vo, $3.50. 
LECTURES ON THE EARLY HISTORY OF 

INSTITUTIONS. 8vo, $3.50. 
VILLAGE COMMUNITIES IN THE EAST AND 

WEST, to which are added other Lectures, 

Addresses, and Essays. 8vo, $3.50. 
DISSERTATIONS ON EARLY LAW AND 

CUSTOM. Chiefly selected from Lectures 

delivered at Oxford. 8vo, $3.50. 
POPULAR GOVERNMENT: Four Essays. 

I. Prospects op Popular Government. 

II. Nature of Democracy. III. Age of 
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INTERNATIONAL LAW. A Series of Lectures 
delivered before the University of Cambridge, 
1887. 8vo, $2.75. 

SIR HENRY MAINE. A Brief Memoir of his 
Life. By the Right Hon. Sir M. E. Grant 
Duff, G. C.S.I. With some of his Indian 
Speeches and Minutes Selected and Edited by 
Whitley Stokes, D.C.L. With Portrait. 8vo, 
$3.50. 

HENRY HOLT & CO., Publishers, New York. 



LECTUBES 



ON THE 



EAELY HISTORY OF INSTITUTIONS 

(A Sequel to "Ancieut Law.") 



By SIR HENRY, SUMNER MATTER 

K.C.SJ. LL.D. F.RJ3. 
ucnraoA o» * ajjoikwt law' utd ' vrLLAoi-.-coMMuxmra » nut sait ant west. 




NEW YOBK 
HENRY HOLT AND COMPANY 

1888 



Jtli 



£9-\g.cg 



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TO 



WHITLEY STOKES, ESQ. 

SECRETARY TO THB GOVERNMKNT OP INDIA IN TIO? LEGISLATIVE DETAKTMrN'T 

THIS VOLUME IS DEDICATED 

Hi fLEOOLLEOTJON OP A LONG OFFICIAL CONNECTION 

AND STILL LONGER FRIENDSHIP 



CONTENTS. 



iaBOTDBB • w,-- 

1. New Materials fob the Early History of Ln- 

stitdtions . .... 1 

il The Ancient Irish Law 24 

ELL Kinship as the Basis of Society .... 64 

IV The Tribe and the Land 98 

V. The Chief and his Order 119 

VI. The Chief and the Land 147 

VII. Ancient Divisions of the Family . . . .185 

VIII. The Growth and Diffusion of Primitive Ideas . 225 
IX. The Primitive Forms of Legal Remedies — I. . 250 

X. The Primitive Forms of Legal Remedies — II. . 279 

XI. The Early History of the Settled Property of 

Married Women 306 

XII. Sovereignty . 342 

XIII. Sovereignty and Empire 371 

INDEX 401 



PREFACE. 



In the Lectures printed in this Volume an attempt 
is made to carry farther in some particulars the line of 
inv jstigation pursued by the Author in an earlier work 
on ' Ancient Law/ The fortunes of the legal system 
which then supplied him with the greatest number of 
his illustrations have been strikingly unlike those of 
another body of law from which he has now endea- 
voured to obtain some new materials for le^al and 
social history. The Eoman Law has never ceased to 
be spoken of with deep respect, and it is in fact the 
source of the greatest part of the rules by which 
civil life is still governed in the Western World. The 
Ancient Irish Law, the so-called Brehon Law, has 
been for the most part bitterly condemned by the few 
writers who have noticed it ; and, after gradually losing 
whatever influence it once possessed in the country in 

a 



Vlll PREFACE. 



which it grew up, in the end it was forcibly sup- 
pressed. Yet the very causes which have denied a 
modern history to the Brehon Law have given it a 
special interest of its own in our day through the 
arrest of its development ; and this interest, the Author 
hopes, is sufficient to serve as his excuse for making 
the conclusions it suggests the principal subject of the 
Lectures now published, except the last three. 

The obligations of the Author to various Gentle- 
men for instruction derived from their published 
writings or private communications are acknowledged 
in the body of the work, but he has to express his 
especial thanks to the Bishop of Limerick, and to 
Professor Thaddeus O'Mahony, for facilities of access 
to the still unpublished translations of Brehon manu- 
scripts, as well as for many valuable suggestions. 

The Lectures (with the omission of portions) have 
all been delivered at Oxford. 



27 Cornwall Gardens, London, S.W. : 
November 1874. 



THE 



EARLY HISTORY OF INSTITUTIONS 



LECTURES 

Off THE 

EARLY HISTORY OF INSTITUTIONS. 

LECTURE I. 

NEW MATERIALS FOR THE EARLY HISTORY 
OF INSTITUTIONS. 

The sources of information concerning the early 
history of institutions which have been opened to us 
during the last few years are numerous and valuable. 
On one subject in particular, which may be confi- 
dently said to have been almost exclusively investi- 
gated till lately by writers who had followed a false 
path, the additions to our knowledge are of special 
interest and importance. We at length know some- 
thing concerning the beginnings of the great institu- 
tion of Property in Land. The collective ownership of 
the soil by groups of men either in fact united by 
blood-relationship, or believing or assuming that they 
are so united, is now entitled to take rank as an 
ascertained primitive phenomenon, once, universally 
characterising those communities of mankind between 
whose civilisation and our own there is any distinct^ 

B 



2 LANDED PEOPERTY IN RUSSIA. lect. i. 

connection or analogy. The evidence has been found 
on all sides of us, dimly seen and verifiable with diffi- 
culty in countries which have undergone the enormous 
pressure of the Koman Empire, or which have been 
strongly affected by its indirect influence, but perfectly 
plain and unmistakeable in the parts of the world, 
peopled by the Aryan race, where the Empire has 
made itself felt very slightly or not at all. As regards 
the Sclavonic communities, the enfranchisement of the 
peasantry of the Russian dominions in Europe has 
given a stimulus to enquiries which formerly had at- 
tractions for only a few curious observers, and the 
amount of information collected has been very large. 
We now know much more clearly than we did before 
that the soil of the older provinces of the Russian 
Empire has been, from time immemorial, almost exclu- 
sively distributed among groups of self-styled kins- 
men, collected in cultivating village -communities, self- 
organised and self-governing; and, since the great 
measure of the present reign, the collective rights of 
these communities, and the rights and duties of their 
members in respect of one another, are no longer en- 
tangled with and limited by the manorial privileges of 
an owner-in- chief. There is also fresh evidence that 
the more backward of the outlying Sclavonic societies 
are constituted upon essentially the same model ; and it 
is one of the facts with which the Western world will 
some day assuredly have to reckon, that the political 



/ 
lect. i. VESTIGES OF VILLAGE-COMMUNITY. 



ideas of so large a portion of the human race, and 
its ideas of property also, are inextricably bound up 
with the notions of family interdependency, of col- 
lective ownership, and of natural subjection to 
patriarchal power. The traces of the ancient social 
order in the Germanic and Scandinavian countries 
are, I need scarcely say, considerably fainter, and 
tend always to become more obscured; but the re- 
examination of the written evidence respecting ancient 
Teutonic life and custom proceeds without intermis- 
sion, and incidentally much light has been thrown on 
the early history of property by the remarkable work 
of Sohm (' Frankische Reichs-und Gerichtsverfass- 
ung'). The results obtained by the special method 
of G. L. Yon Maurer have meantime been verified by 
comparison with phenomena discovered in + he most 
unexpected quarters. The researches of M. de 
Laveleye, in particular, have been conducted over a 
field of very wide extent ; and, although I dissent 
from some of the economic conclusions to which he 
has been led, I cannot speak too highly of the value 
of the materials collected by him, and described in 
the recently published volume which he has entitled 
1 La Propri^te* et ses Formes Primitives.' I have 
not observed that the vestiges left on the soil and 
law of England and of the Scottish Lowlands by the 
ancient Village -Community have been made the 
subject of any published work since the monograph 

B 2 



4 VESTIGES OF VILLAGE -COMMUNITY. LECT. L 

of Nasse on the ' Land Community of the Middle 
Ages ' was given to the world, and since the lectures 
delivered in this place three years since appeared in 
print. Nobody, however, who knows the carefulness 
with which an English Court of Justice sifts the ma- 
terials brought before it will wonder at my attaching 
a special importance to the judgment of Lord Chan- 
cellor Hatherley, given in a difficult case which arose 
through a dispute between different classes of persons 
interested in a manor, Warrick against Queen's Col- 
lege, Oxford (reported in 6 Law Reports, Chancery 
Appeals, 716). It appears to me to recognise the traces 
of a state of things older than the theoretical basis of 
English Real Property Law, and, so far as it goes, to 
allow that the description of it given here was correct. 
Meanwhile, if I may judge from the communications 
which do not cease to reach me from India, and from 
various parts of this country, the constitution of the 
Village -Community, as it exists, and as it existed, is 
engaging the attention of a large number of indus- 
trious observers, and the facts bearing upon the sub- 
ject, which I hope will some day be made public, 
prove to exist in extraordinary abundance. 

There was no set of communities which until 
recently supplied us with information less in amount 
and apparent value concerning the early his- 
tory of law than those of Celtic origin. This was 
the more remarkable, because one particular group 



lect. i. CELTIC SOCIETIES. 5 

of small Celtic societies, which have engrossed more 
than their share of the interest of this country — the 
clans of the Scottish Highlands — had admittedly 
retained many of the characteristics, and in particular 
the political characteristics, of a more ancient condi- 
tion of the world, almost down to our own day. But 
the explanation is, that all Celtic societies were until 
recently seen by those competent to observe them 
through a peculiarly deceptive medium. A veil 
spread by the lawyers, a veil woven of Roman law 
and of that comparatively modern combination of 
primitive and Roman law which we call feudalism, 
hung between the Highland institutions and the 
shrewd investigating genius of the Scottish Low- 
landers. A thick mist of feudal law hid the ancient 
constitution of Irish society from English observa- 
tion, and led to unfounded doubts respecting the 
authenticity of the laws of Wales. The ancient or- 
ganisation of the Celts of Gaul, described by Caesar 
with the greatest clearness and decisiveness, appeared 
to have entirely disappeared from France, partly 
because French society was exclusively examined for 
many centuries by lawyers trained either in Roman 
or in highly feudalised law, but partly also because 
the institutions of the Gallic Celts had really passed 
under the crushing machinery of Roman legislation. 
I do not, indeed, mean to say that this darkness has 
not recently given signs of lifting. It has been re- 



6 CELTIC INSTITUTIONS. LECI. h 

cognised that the collections of Welsh laws published 
by the Record Commission, though their origin and 
date are uncertain, are undoubtedly bodies of genuine 
legal rules ; and, independently of the publications to 
which I am about to direct attention, the group of 
Irish scholars, distinguished by remarkable sobriety 
of thought, which has succeeded a school almost in- 
famous for the unchastened license of its speculations 
on history and philology, had pointed out many 
things in Irish custom which connected it with the 
archaic practices known to be still followed or to 
have been followed by the Germanic races. As early 
as 1837 Mr. W. F. Skene, in a work of much value 
called c The Highlanders of Scotland,' had corrected 
many of the mistakes on the subject of Highland 
usage into which writers exclusively conversant with 
feudal rules had been betrayed ; and the same emi- 
nent antiquarian, in an appendix to his edition of the 
Scottish chronicler, Fordun, published in 1872, con- 
firms evidence which had reached me in considerable 
quantities from private sources to the effect that vil- 
lage-communities with 4 shifting severalties ' existed 
in the Highlands within living memory. Quite re- 
cently, also, M. Le Play and others have come upon 
plain traces of such communities in several parts of 
France. A close re-examination of the Custumals or 
manuals of feudal rules plentiful in French legal 
literature led farther to some highly interesting 



lect. l. ASCIEXT FKENCH COMMUNITIES. 1 

results. It clearly appeared from them that com- 
munities of villeins were constantly found on the 
estates of the French territorial nobility. The legal 
writers have always represented these as voluntary 
associations, which were rather favoured by the lord 
on account of the greater certainty and regularity 
with which their members rendered him suit and 
service. As a rule, when a tenant holding by base 
tenure died, the lord succeeded in the first instance 
to his land, a rule of which there are plain traces in 
our English law of copyhold. But it is expressly 
stated that, in the case of an association of villeins, 
the lord did not resume their land, being supposed to 
be compensated by their better ability to furnish his 
dues. Now that the explanation has once been 
given, there can be no doubt that these associations 
were not really voluntary partnerships, but groups of 
kinsmen ; not, however, so often organised on the 
ordinary type of the Village -Community as on that of 
the House-Community, which has recently been ex- 
amined in Dalmatia and Croatia. Each of them was 
what the Hindoos call a Joint Undivided Family, a 
collection of assumed descendants from a common an- 
cestor, preserving a common hearth and common meals 
during several generations. There was no escheat of 
the land to the lord on a death, because such a cor- 
poration never dies, and the succession is perpetual. 
But much the most instructive contribution tti 



8 ANCIENT LAWS OF IKELAND. lect. l 

our knowledge of the ancient Celtic societies has 
been furnished by the Irish Government, in the 
translations of the Ancient Laws of Ireland, which 
have been published at its expense. The first volume 
of these translations was published in 1865 ; the se- 
cond in 1869; the third, enriched with some valuable 
prefaces, has only just appeared. No one interested 
in the studies which are now occupying us could fail 
to recognise the importance of the earlier volumes, 
but there was much difficulty in determining their 
exact bearing on the early history of Celtic institu- 
tions. The bulk of the law first published consisted 
in a collection cf rules belonging to what in our 
modern legal language we should call the Law of 
Distress. Now, in very ancient bodies of rules the 
Law of Distress, as I shall endeavour to explain 
hereafter, is undoubtedly entitled to a very different 
place from that which would be given to it in any 
modern system of jurisprudence ; but still it is a 
highly special branch of law in any stage of develop- 
ment. There is, however, another more permanent 
and more serious cause of embarrassment in drawing 
conclusions from these laws. Until comparatively 
lately they were practically unintelligible ; and they 
were restored to knowledge by the original transla- 
tors, Dr. 0' Donovan and Dr. 0' Curry, two very re- 
markable men, both of whom are now dead. The 
translations have been carefully revised by the 



lect. i. ANCIENT LAWS OF IBELAND. / 9 

learned editor of the Irish text ; but it is probable 
that several generations of Celtic scholars will have 
had to interchange criticisms on the language of the 
laws before the reader who approaches them without 
any pretension to Celtic scholarship can be quite 
sure that he has the exact meaning of every passage 
before him. The laws, too, I need scarcely say, are 
full of technical expressions; and the greatest scholar 
who has not had a legal training — and, indeed, up to 
a certain point when he has had a legal training — 
may fail to catch the exact excess or defect of mean- 
ing which distinguishes a word in popular use from 
the same word employed technically. Such consi- 
derations suggest the greatest possible caution in 
dealing with this body of rules. In what follows I 
attempt to draw inferences only when the meaning 
and drift of the text seem reasonably certain, and I 
have avoided some promising lines of enquiry which 
would lead us through 1 assages of doubtful sig- 

© i o o 

nification. 

The value which the Ancient Laws of Ireland, the 
so-called Brehon laws, will possess when they are 
completely published and interpreted, may, I think, 
be illustrated in this way. Let it be remembered 
that the Roman Law, which, next to the Christian 
Religion, is the most plentiful source of the rules go- 
verning actual conduct throughout Western Europe, 
is descended from a small body of Aryan customs re- 



JO ANCIENT ROMAN AND IRISH LAW. lect. I, 

duced to writing in the fifth century before Christ, 
and known as the Twelve Tables of Rome. Let 
it farther be recollected that this law was at first 
expanded and developed, not at all, or very slightly, 
by legislation, but by a process which we may 
perceive still in operation in various communities — the 
juridical interpretation of authoritative texts by 
successive generations of learned men. Now, the 
largest collection of Irish legal rules, which has 
come down to us, professes to be an ancient Code, 
with an appendage of later glosses and commentaries ; 
and, if its authenticity could be fully established, this 
ancient Irish Code wx>uld correspond historically to 
the Twelve Tables of Rome, and to many similar 
bodies of written rules which appear in the early 
history of Aryan societies. There is reason, how- 
ever, to think that its claims to antiquity cannot be 
sustained to their full extent, and that the Code itself 
is an accretion of rules which have clustered round 
an older nucleus. But that some such kernel or 
perhaps several such kernels of written law existed, 
is highly probable, and it is also probable that the 
whole of the Brehon law consists of them and of 
accumulations formed upon them. It is farther 
probable that the process by which these accumula- 
tions were formed was, as in the infancy of the 
Roman State, juridical interpretation. According to 
the opinion which I follow, the interesting fact, about 



leut. I. INFLUENCE OF THE ROMAN EMPIRE: 11 

the ancient Irish law is, that this process was ex- 
clusive, and that none of the later agencies by which 
law is transformed came into play. The Brehon 
laws are in no sense a legislative construction, and 
thus they are not only an authentic monument of a 
very ancient group of Aryan institutions ; they are 
also a collection of rules which have been gradually 
developed in a way highly favourable to the preser- 
vation of archaic peculiarities. Two causes have 
done most to obscure the oldest institutions of the 
portion of the human race to which we belong : one 
has been the formation throughout the West of strong 
centralised governments, concentrating in themselves 
the public force of the community, and enabled to 
give to that force upon occasion the special form of 
legislative power ; the other has been the influence, 
direct and indirect, of the Roman Empire, drawing 
with it an activity in legislation unknown to the 
parts of the world which were never subjected to it. 
Now, Ireland is allowed on all hands to have never 
formed part of the Empire; it was very slightly 
affected from a distance by the Imperial law; and, 
even if it be admitted that, during certain intervals 
of its ancient history, it had a central government, 
assuredly this government was never a strong one. 
Under these circumstances it is not wonderful that 
the Brehon law, growing together without legislation 
upon an original body of Aryan custom, and formed 



13 IEISH AM) HINDOO LAW. lect. i. 

beyond the limit of that cloud of Roman juridical 
ideas which for many centuries overspread the whole 
Continent, and even at its extremity extended to 
England, should present some very strong analogies 
to another set of derivative Aryan usages, the Hindoo 
law, which was similarly developed. The curious 
and perplexing problems which such a mode of 
growth suggests have to be grappled with by the 
student of either system. 

The ancient laws of Ireland have come down to 
us as an assemblage of law- tracts, each treating of 
some one subject or of a group of subjects. The 
volumes officially translated and published contain 
the two largest of these tracts, the Senchus Mor, or 
Great Book of the Ancient Law, and the Book of 
Aicill. While the comparison of the Senchus Mor 
and of the Book of Aicill with other extant bodies of 
archaic rules leaves no doubt of the great antiquity 
of much of their contents, the actual period at which 
they assumed their present shape is extremely 
uncertain. Mr. Whitley Stokes, one of the most 
eminent of living Celtic scholars, believes, upon con- 
sideration of its verbal forms, that the Senchus Mor 
was compiled in or perhaps slightly before the eleventh 
century ; and there appears to be internal evidence 
which on the whole allows us to attribute the Book 
of Aicill to the century preceding. The Senchus 
Mor, it is true, expressly claims for itself a far earlier 



user. I. DATES OF IEISH LAW-TKACTS. 13 

origin. In a remarkable preface, of which I shall 
have much to say hereafter, it gives an account, 
partly in verse, of the circumstances under which it 
was drawn up, and it professes to have been compiled 
during the life and under the personal influence of 
St. Patrick. These pretensions have been ingeniously 
supported, but there is not much temerity, I think, 
in refusing to accept the fifth century as the date of 
the Senchus Mor. At the same time it is far from 
impossible that the writing of the ancient Irish laws 
began soon after the Christianisation of Ireland. It 
was Christianity, a ' religion of a book/ which for the 
first time introduced many of the ruder nations out- 
side the Empire to the art of writing. We cannot 
safely claim for the Celts of Ireland, in the fifth 
century of the Christian era, precisely the same 
degree of culture which Caesar attributes to the Celts 
of the Continent in the first century before Christ ; 
but, even if we could do so, Caesar expressly states 
of the Gauls that, though they were acquainted witli 
writing, they had superstitious scruples about using 
written characters to preserve any part of their sacred 
literature, in which their law would then be included. 
Such objections would, however, necessarily disappear 
with the conversion of the Irish people to Christianity. 
On the whole there is no antecedent improbability 
in the tradition that, soon after this conversion, the 
isages of the Irish began to be stated in writing, and 



14 ANCIENT LAW IN VERSE. user, i. 

Celtic scholars have detected not a little evidence 
that parts of these more venerable writings are im- 
bedded in the text of the Book of Aicill and of the 
Senchus Mor. 

It is extremely likely that the most ancient law 
was preserved in rude verse or rhythmical prose. In 
the oldest Irish traditions the lawyer is distinguished 
with difficulty from the poet, poetry from literature. 
Both in the Senchus Mor and in the Book of Aicill 
the express statement of the law is described as 
4 casting a thread of poetry ' about it, and the 
traditional authors of the Senchus Mor are said to 
have exhibited ' all the judgment and poetry of the 
men of Erin.' Modern Irish scholarship has, in fact, 
discovered that portions of the Senchus Mor are 
really in verse. The phenomenon is not unfamiliar. 
-Mr. Grote, speaking of the Elegiacs of Solon, and of 
the natural priority of verse to prose, says (History 
of Greece, iii. 119), i the acquisitions as well as the 
effusions of an intellectual man, even in the simplest 
form, (then) adjusted themselves not to the limitations 
of the period and semicolon, but to those of the 
hexameter and pentameter.' There is no question, 
I conceive, that this ancient written verse is what is 
now called a survival, descending to the first ages of 
written composition from the ages when measured 
rhythm was absolutely essential, in order that the 
memory might bear the vast burdens placed upon it 



ebct. I. FOEM OF BREHON TRACTS. 16 

It is now generally agreed that the voluminous 
versified Sanscrit literature, which embraces not only 
the poetry of the Hindoos, but most of their religion, 
much of what stands to them in place of history, and 
something even of their law, was originally preserved 
by recollection and published by recitation ; aud even 
now, in the Sanscrit schools which remain, the pupil 
is trained to exercises of memory which are little 
short of miraculous to an Englishman. 

The tracts are of very unequal size, and the sub- 
jects they embrace are of very unequal importance. 
But all alike consist of an original text, divided into 
paragraphs. Above or over against the principal 
words of the text glosses or interpretations are written 
in a smaller hand, and a paragraph is constantly 
followed by an explanatory commentary, also in a 
smaller hand, written in the space which separates 
the paragraph from the next. The scarcity of mate- 
rial for writing may perhaps sufficiently account for 
the form taken by the manuscripts; but the Celts 
seem to have had a special habit of glossing, and you 
may have heard that the glosses written by early 
Irish monks between the lines or on the margin of 
manuscripts belonging to religious houses on the 
Continent had much to do with the wonderful dis- 
coveries of Zeuss in Celtic philology. A facsimile of 
part of two Brehon manuscripts, one in the British 
Museum, and the other in the Library of Trinity 



16 FORM OF BREHON TRACTS. lect. I 

College, Dublin, may be seen at the beginning of the 
second published volume of the translations. It seems 
probable that each tract was the property, and that 
it sets forth the special legal doctrines, of some body 
of persons who, in modern legal phrase, had perpetual 
succession, a Family or Law School; there is ample 
evidence of the existence of such law schools in 
ancient Ireland, and they are another feature of resem- 
blance to the India of the past and in some degree to 
the India of the present. 

The text of each of the published tracts appears to 
have been put together by one effort, no doubt from 
pre-existing materials, and it may have been written 
continuously by some one person ; but the additions 
to it must be an accumulation of explanations and 
expositions of various dates by subsequent possessors 
of the document. I quite agree with the observation 
of the Editors, that, while the text is for the most part 
comparatively consistent and clear, the commentary 
is often obscure and contradictory. Precisely the 
same remark is frequently made by Anglo-Indian 
Judges on the Brahminical legal treatises, some of 
which are similarly divided into a text and a com- 
mentary. As regards the ancient Irish law, the result 
of the whole process is anything but satisfactory to the 
modern reader. I do not know that, in any extant 
body of legal rules, the difficulty of mastering the 
contents has ever been so seriously aggravated by the 



lect. I. MAMJSCRIPTS OF IRISH LAW. / 17 

repulsiveness of the form. One of the editors has un- 
kindly, but not unjustly, compared a Brehon tract to 
the worst kind of English law-book, without even the 
moderate advantage of an alphabetical arrangement. 

The exact date at which the existing manuscripts 
were written cannot be satisfactorily settled until 
they are all made accessible, which unfortunately they 
are not at present. But we know one MS. of the 
Senchus Mor to be at least as old as the fourteenth 
century, since a touching note has been written on it 
by a member of the family to which it belonged : 
1 One thousand three hundred two and forty years 
from the birth of Christ till this night ; and this is 
the second year since the coming of the plague into 
Ireland. I have written this in the 20th year of my 
age. I am Hugh, son of Conor McEgan, and who- 
ever reads it let him offer a prayer of mercy for 
my soul. This is Christmas night, and on this night 
I place myself under the protection of the King of 
Heaven and Earth, beseeching that he will bring me 
and my friends safe through the plague. Hugh 
wrote this in his own father's book in the year of the 
great plague.' 

The system of legal rules contained in these 
law-tracts is undoubtedly the same with that repeat- 
edly condemned by Anglo-Irish legislation, and re- 
peatedly noticed by English observers of Ireland 
down to tno early part of the seventeenth century 



18 ENGLISH CENSURES OF BREHON LAW. lect. t 

It is the same law which, in 1367, ? statute of Kil« 
kenny denounces as ' wicked and damnable.' It is 
the same law which Edmund Spenser, in his ' View 
of the State of Ireland,' describes as ' a rule of right 
unwritten, but delivered by tradition from one to 
another, in which oftentimes there appeareth a great 
show of equity, in determining the right between 
party and party, but in many things repugning quite 
both to God's law and man's.' It is the same ' lewd ' 
and ' unreasonable ' custom which Sir John Davis con- 
trasts with the ' just and honourable law of England,' 
and to which he attributes such desolation and bar- 
barism in Ireland, t as the like was never seen in any 
country that professed the name of Christ.' It is not 
our business in this department of study to enquire 
how far this violent antipathy was politically justifi- 
able. Even if the worst that has been said by Eng- 
lishmen of the Brehon law down to our own day 
were true, we might console ourselves by turning our 
eyes to spheres of enquiry fuller of immediate promise 
to the world than ours, and observing how much of 
the wealth of modern thought has been obtained 
from the dross which earlier generations had rejected 
Meanwhile, happily, it is a distinct property of the 
Comparative Method of investigation to abate national 
prejudices. I myself believe that the government of 
India by the English has been rendered appreciably 
easier by the discoveries which have brought home to 
the educated of both races the common Aryan parent* 



lect. I. HISTORICAL CHARACTER OF BREHON IAW. 19 

age of Englishman and Hindoo. Similarly, I a:n not 
afraid to anticipate that there will some day be more 
hesitation in repeating the invectives of Spenser and 
Davis, when it is once clearly understood that the 
1 lewd ' institutions of the Irish were virtually the 
same institutions as those out of which the * just and 
honourable law ' of England grew. Why these insti- 
tutions followed in their development such different 
paths it is the province of History to decide ; but, 
when it gives an impartial decision, I doubt much its 
wholly attributing the difference to native faults of 
Irish character. We, who are able here to examine 
coolly the ancient Irish law in an authentic form, can 
see that it is a very remarkable body of archaic law, 
unusually pure from its origin. It has some analogies 
with the Roman law of the earliest times, some with 
Scandinavian law, some with the law of the Sclavonic 
races, so far as it is known, some (and these particu- 
larly strong) with the Hindoo law, and quite enough 
with old Germanic law of all kinds, to render value- 
less, for scientific purposes, the comparison which the 
English observers so constantly institute with the 
laws of England. It is manifestly the same system 
in origin and principle with that which has descended 
to us as the Laws of Wales, but these last have some- 
how undergone the important modifications which 
arise from the establishment of a comparatively strong 
central authority. Nor does the Brehon law alto- 

o a 



20 ADVANCED LEGAL DOCTRINES IN BREHON LAW. lect. I. 

getlier disappoint the expectations of the patriotic 
Irishmen who, partly trusting to the testimony of 
Edmund Spenser, the least unkind of the English 
critics of Ireland, though one of the most ruthless in 
his practical suggestions, looked forward to its mani- 
festing, when it was published, an equity and reason- 
ableness which would put to shame the barbarous 
jurisprudence of England. Much of it — I am afraid 
I must say, most of it — is worthless save for historical 
purposes, but on some points it really does come close 
to the most advanced legal doctrines of our day. The 
explanation — which I will hereafter give at length — I 
believe to lie in the method of its development, which 
has not been through the decisions of courts, but by 
the opinions of lawyers on hypothetical states of fact. 
I think I may lay down that, wherever we 
have any knowledge of a body of Aryan custom, 
either anterior to or but slightly affected by the 
Eoman Empire, it will be found to exhibit some 
strong points of resemblance to the institutions which 
are the basis of the Brehon law. The depth to 
which the Empire has stamped itself on the political 
arrangements of the modern world has been illustrated 
of late years with much learning ; but I repeat my 
assertion that the great difference between the Koman 
Empire and all other sovereignties of the ancient 
world lay in the activity of its legislation, through 
the Edicts of the Praetor and the Constitutions of the 






lect. l. ORIGIN OF SEXCHUS MOR. 21 

Emperors. For many races, it actually repealed their 
customs and replaced them by new ones. For others, 
the results of its legislation mixed themselves indis- 
tinguishably with, their law. With others, it introduced 
or immensely stimulated the habit of legislation ; and 
this is one of the ways in which it bas influenced the 
stubborn body of Germanic custom prevailing in 
Great Britain. But wherever the institutions of any 
Aryan race have been untouched by it, or slightly 
touched by it, the common basis of Aryan usage is 
perfectly discernible ; and thus it is that these Brehon 
law-tracts enable us to connect the races at the east- 
ern and western extremities of a later Aryan world, 
the Hindoos and the Irish. 

The Lectures which follow will help, I trust, to 
show what use the student of comparative jurispru- 
dence may make of this novel addition to our 
knowledge of ancient law. Meantime, there is some 
interest in contrasting the view of its nature, origin, 
and growth, which we are obliged to take here, with 
that to which the ancient Irish practitioners occa- 
sionally strove hard to give currency. The Senchus 
Mor, the Great Book of the Ancient Law, was doubt- 
less a most precious possession of the law-school or 
family to which it belonged ; and its owners have 
joined it to a preface in which a semi-divine author- 
ship is boldly claimed for it. Odhran, the charioteer 
of St. Patrick — so says this preface — had been killed, 



22 PREFACE OF SENCHUS MOR. lecx l 

and the question arose whether Nuada, the slayer, 
should die, or whether the saint was bound by his own 
principles to unconditional forgiveness. St. Patrick 
did not decide the point himself; the narrator, in true 
professional spirit, tells us that he set the precedent 
according to which a stranger from beyond the sea 
always selects a legal adviser. He chose 4 to go ac- 
cording to the judgment of the royal poet of the men 
of Erin, Dubhthach Mac ua Lugair,' and he ' blessed 
the mouth ' of Dubhthach. A poem, doubtless of 
much antiquity and celebrity, is then put into the 
mouth of the arbitrator, and by the judgment em- 
bodied in it Nuada is to die; but he ascends straight 
to heaven through the intercession of St. Patrick. 
' Then King Laeghaire said, " It is necessary for you, 
men of Erin, that every other law should be settled 
and arranged by us as well as this." " It is better to 
do so," said Patrick. It was then that all the pro- 
fessors of the sciences in Erin were assembled, and 
each of them exhibited his art before Patrick, in the 
presence of every chief in Erin. It was then Dubh- 
thach was ordered to exhibit all the judgments and 
all the poetry of Erin, and every law which prevailed 
among the men of Erin. . . . This is the Cain Patraic 
and no human Brehon of the Gaedhil is able t 
abrogate anything that is found in the Senchus Mor. 
The inspired award of Dubhthach that Nuada 
must die suggests to the commentator the following 
remark : " What is understood from the above decision 



lect. i. COMPOSITION FOE HOMICIDE. 2? 

which God revealed to Dubhthach is, that it was a 
middle course between forgiveness and retaliation; for 
retaliation prevailed in Erin before Patrick, and 
Patrick brought forgiveness with him ; that is, Nuada 
was put to death for his crime, and Patrick obtained 
heaven for him. At this day we keep between for- 
giveness and retaliation; for as at present no one 
has the power of bestowing heaven, as Patrick had at 
that day, so no one is put to death for his intentional 
crimes, so long as ' eric ' fine is obtained ; and whenever 
' eric ' fine is not obtained, he is put to death for his 
intentional crimes, and placed on the sea for his un- 
intentional crimes." It is impossible, of course, to 
accept the statement that this wide-spread ancient in- 
stitution, the pecuniary line levied on tribes or families 
for the wrongs done by their members, had its origin 
in Christian influences ; but that it succeeded simple 
retaliation is in the highest degree probable, and no 
doubt in its day it was at least as great an advantage 
to the communities among whom it prevailed as was 
that stern royal administration of criminal justice to 
which the Englishmen of the sixteenth century were 
accustomed, and on which they so singularly prided 
themselves. But by the sixteenth century it may well 
have outlived its usefulness, and so may have partially 
justified the invectives of its English censors, who 
generally have the ' eric '-fine for homicide in view 
when they denounce the Brehon law as ; contrary to 
God's law and man's.' 



24 SENCHUS MOR AND BOOK OF AICILL. lbct. il 



LECTURE II. 

THE ANCIENT IRISH LAW. 

The great peculiarity of the ancient laws of Ireland, 
so far as they are accessible to us, is discussed, with 
much instructive illustration, in the General Preface 
to the Third Volume of the official translations. They 
are not a legislative structure, but the creation of a 
class of professional lawyers, the Brehons, whose 
occupation became hereditary, and who on that ground 
have been designated, though not with strict accuracy, 
a caste. This view, which is consistent with all that 
early English authorities on Ireland have told us of 
the system they call the Brehon law, is certainly that 
which would be suggested by simple inspection of 
the law-tracts at present translated and published. 
The Book of Aicill is probably the oldest, and its 
text is avowedly composed of the dicta of two famous 
lawyers, Cormac and Cennfaeladh. The Senchus 
Mor does, indeed, profess to have been produced by a 
process resembling legislation, but the pretension can- 
not be supported; and, even if it could, the Senchus 
Mor would not less consist of the opinions of famous 
Brehons. It describes the legal rules embodied in its 



lect. ir. INGREDIENTS OF THE SENCHUS MOR. 25 

text as formed of the c law of nature/ and of the ' law 
of the letter.' The 'law of the letter ' is the Scriptural 
law, extended by so much of Canon law as the primitive 
monastic Church of Ireland can be supposed to have 
created or adopted. The reference in the misleading 
phrase ' law of nature,' is not to the memorable com- 
bination of words familiar to the Roman lawyers, but 
to the text of St. Paul in the Epistle to the Romans: 
1 For when the Gentiles, which have not the law, do 
by nature the things contained in the law, these, 
having not the law, are a law unto themselves. 7 
(Rom. ii. 14.) The c law of nature' is, therefore, the 
ancient pre-Christian ingredient in the system, and the 
' Senchus Mor ' says of it : ' The judgments of true 
nature while the Holy Ghost had spoken through the 
mouths of the Brehons and just poets of the men of 
Erin, from the first occupation of Ireland down to 
the reception of the faith, were all exhibited by 
Dubhthagh to Patrick. What did not clash with the 
Word of God in the written law and the New Testa- 
ment and the consciences of believers, was confirmed 
in the laws of the Brehons by Patrick and by the 
ecclesiastics and chieftains of Ireland; for the law of 
nature had been quite right except the faith, and its 
obligations, and the harmony of the Church and 
people. And this is the " Senchus Mor." ' 

Dr. Sullivan, on the other hand, whose learned 
and exhaustive Introduction to O'Curry's Lectures 



20 LEGISLATION AND ANCIENT IRISH LAW. lect. tt 

forms the first volume of the ' Manners and Cus- 
toms of the Ancient Irish/ affirms, on the evidence of 
ancient records, that the institutions which in some 
communities undoubtedly developed into true legis- 
latures had their counterparts in the Ireland to which 
the laws belonged, and he does not hesitate to desig- 
nate certain portions of the Irish legal system ' statute- 
law.' In the present state of criticism on Irish docu- 
ments it is not possible to hold the balance exactly 
between the writers of the Introduction and of the 
General Preface ; but there is not the inconsistency 
between their opinions which there might appear to 
be at first sight. In the infancy of society many 
conceptions are found blended together which are 
now distinct, and many associations which are now 
inseparable from particular processes or institutions 
are not found coupled with them. There is abundant 
proof that legislative and judicial power are not dis- 
tinguished in primitive thought ; nor, again, is legis- 
lation associated with innovation. In our day the 
legislator is always supposed to innovate ; the judge 
never. But of old the legislator no more necessarily 
innovated than the judge; he only, for the most part, 
declared pre-existing law or custom. It is impossible 
to determine how much new law there was in the 
Laws of Solon, or in the Twelve Tables of Rome, or 
in the Laws of Alfred and Canute, or in the Salic 
Law which is the oldest of the so-called Leges ^ar- 



lect. n. NATURE OP ANCIENT LEGISLATION. 27 

barorum, but in all probability the quantity was ex- 
tremely small. Thus, when a body of Brehon judg- 
ments was promulgated by an Irish Chief to a tribal 
assembly, it is probable that convenience was the 
object sought rather than a new sanction. A re- 
markable poem, appended to O'Curry's Lectures, 
tells us how certain Chiefs proceeded every third year 
to the ' Fair of Carman ' and there proclaimed l the 
rights of every law and the restraints ;' but it does 
not at all follow that this promulgation had any affi- 
nity for legislation in the modern sense. The inno- 
vating legislatures of the modern world appear to 
have grown up where certain conditions were present 
which were virtually unknown to ancient Ireland — 
where the primitive groups of which society was 
formed were broken up with some completeness, and 
where a central government was constituted acting 
on individuals from a distance coercively and irre- 
sistibly. 

There are, moreover, some independent reasons for 
thinking that, among the Celtic races, the half-judicial, 
half- legislative, power originally possessed by the 
tribal Chief, or by the tribal Assembly, or by both in 
combination, passed very early to a special class of 
learned persons. The Prefaces in Irish found at 
the commencement of some of the law-tracts, which 
are of much interest, but of uncertain origin and date, 
contain several references to the order in Celtic 



28 THE DRUIDS. ibct. n. 

society which, has hitherto occupied men's thoughts 
more than any other, the Druids. The word occurs 
in the Irish text. The writers of the prefaces seem 
to have conceived the Druids as a class of heathen 
priests who had once practised magical arts. The 
enchanters of Pharaoh are, for instance, called the 
Egyptian Druids, in the Preface to the Senchus 
Mor. The point of view seems to be the one familiar 
enough to us in modern literature, where an exclusive 
prominence is given to the priestly character of the 
Druids ; nor do the Brehon lawyers appear to connect 
themselves with a class of men whom they regard as 
having belonged altogether to the old order of the 
world. I am quite aware that, in asking whether 
the historical disconnection' of the Brehons and the 
Druids can be accepted as a fact, I suggest an enquiry 
about which there hangs a certain air of absurdity. 
There has been so much wild speculation and 
assertion about Druids and Druidical antiquities 
that the whole subject seems to be considered as 
almost beyond the pale of serious discussion. Yet 
we are not at liberty to forget that the first great 
observer of Celtic manners describes the Celts of the 
Continent as before all things remarkable for the 
literary class which their society included. Let me 
add that in Caesar's account of the Druids there is not 
a word which does not appear to me perfectly credible. 
The same remark may be made of Strabo But the 



lect. n. (LESAK S ACCOUNT OF COXTTNEtfTAL CELTS. 2S 

source of at all events a part of the absurdities which 
have clustered round the subject I take to be the 
Natural History of Pliny, and they seem to belong 
to those stories about plants and animals to which 
may be traced a great deal of the nonsense written in 
the world. 

You may remember the picture given by CaBsar 
of the Continental Celts, as they appeared to him 
when he first used his unrivalled opportunities of 
examining them. He tells us that their tribal socie- 
ties consisted substantially of three orders, two pri- 
vileged and one unprivileged, and these orders he 
calls the Equites, the Druids, and the Plebeians. 
Somebody has said that this would be a not very 
inaccurate description of French society just before 
the first Revolution, with its three orders of Nobles, 
Clergy, and unprivileged Tiers-Etat ; but the obser- 
vation is a good deal more ingenious than true. We 
are now able to compare Caesar's account of the 
Gauls with the evidence concerning a Celtic commu- 
nity which the Brehon tracts supply ; and if we use 
this evidence as a test, we shall soon make up our 
minds that, though his representation is accurate as 
far as it goes, it errs in omission of detail. The 
Equites, or Chiefs, though to some extent they were 
a class apart, did not stand in such close relation to 
one another as they stood to the various septs or 
groups over which they presided. c Every chief,' 



SO OMISSIONS IN OESARS ACCOUNT. list.il 

says the Brehon law, ' rules over his land, whether 
it be small or whether it be large/ The Plebeians, 
again, so far from constituting a great miscellaneous 
multitude, were distributed into every sort of natural 
group, based ultimately upon the Family. The mis- 
take, so far as there was error, I conceive to have 
been an effect of mental distance. It had the imper- 
fections of the view obtained by looking on the Gan- 
getic plains from the slopes of the Himalayas. The 
impression made is not incorrect, but an immensity 
of detail is lost to the observer, and a surface varied 
by countless small elevations looks perfectly flat. 
Caesar's failure to note the natural divisions of the 
Celtic tribesmen, the families and septs or sub- 
tribes, is to me particularly instructive. The theory 
of human equality is of Roman origin ; the com- 
minution of human society, and the unchecked com- 
petition among its members, which have gone so far 
in the Western Europe of our days, had their most 
efficient causes in the mechanism of the Roman State. 
Hence Caesar's omissions seem to be those most 
natural in a Roman general who was also a great 
administrator and trained lawyer ; and they are un- 
doubtedly those to which an English ruler of India 
is most liable at this moment. It is often said that 
it takes two or three years before a Governor- 
General learns that the vast Indian population is an 
aggregate of natural groups, and not the mixed mul« 



1ECT. n. cjesar's description of THE DRUIDS 31 



titude he left at home ; and some rulers of India 
have been accused of never having mastered the 
lesson at all. 

There are a few very important points of detail 
to be noticed in Caesar's description of what may be 
called the lay portion of Celtic society. I shall after- 
wards call your attention to the significance of what 
he states concerning the classes whom he calls the 
clients and debtors of the Equites, and respecting 
the increased power which they give to the Chief on 
whom they are dependent. It is, however, remark- 
able that, when he speaks of the Druids, his state- 
ments are greatly more detailed. Here there were 
no home associations to mislead him, but, beyond that, 
it is plain that his interest was strongly roused by the 
novel constitution of this privileged order whom he 
places by the side of the Chiefs. Let me recall, then, to 
you the principal points of his description, from which I 
designedly omit all statements concerning the priestly 
office of the class described. He tells us that the 
Druids were supreme judges in all public and private 
disputes ; and that, for instance, all questions of 
homicide, of inheritance, and of boundary were re- 
ferred to them for decision. He says that the Druids 
presided over schools of learning, to which the Celtic 
youth flocked eagerly for instruction, remaining in 
them sometimes (so he was informed) for twenty 
years at a time. He states that the pupils in these 



32 THE DRUIDS AND THE BREHOSTS. lect. n. 

schools learned an enormous quantity of verses, which 
were never committed to writing ; and he gives his 
opinion that the object was not merely to prevent 
sacred knowledge from being popularised, but to 
strengthen the memory. Besides describing to us 
the religious doctrine of the Druids, he informs us 
that they were extremely fond of disputing about 
the nature of the material world, the movements of 
the stars, and the dimensions of the earth and of 
the universe. At their head there was by his ac- 
count a chief Druid, whose place at his death was 
filled by election, and the succession occasionally 
gave rise to violent contests of arms (B. G. vi. 
13, 14). 

There are some strong and even startling points 
of correspondence between the functions of the 
Druids, as described by Caesar, and the office of the 
Brehon, as suggested by the law-tracts. The exten- 
sive literature of law just disinterred testifies to the 
authority of the Brehons in all legal matters, and 
raises a strong presumption that they were universal 
referees in disputes. Among their writings are 
separate treatises on inheritance and boundary, and 
almost every page of the translations contains a 
reference to the ' eric '-fine for homicide. The schools 
of literature and law appear to have been numerous 
in ancient Ireland, and 0' Curry is able to give the 
course of instruction in one of them extending ever 



lect. n. JRISH PREFACES TO TRACTS. S3 

twelve years. All literature, including even law, 
seems to have been identified with poetry. The 
chief Druid of Caesar meets us on the very threshold 
of the Senchus Mor, in the person of Dubhthach 
Mac ua Lugair, the royal poet of Erin, the Brehor 
who was chosen by St. Patrick to arbitrate in a. 
question of homicide, and whose ' mouth ' the saint 
i blessed.' The mode of choosing the chief Druid, 
by election, has its counterpart in the institution of 
Tanistry, which within historical times determined 
the succession to all high office in Ireland, and which 
was hateful to the English, as affording smaller 
security for order than their own less archaic form oi 
primogeniture. Nor is this all. The Prefaces in Irish 
to the tracts contain a number of discussions on subjects 
which are in no way legal, or which are forced into 
some connection with law by the most violent expe- 
dients. They leave on the mind the impression of 
being a patchwork of materials, probably of very 
various antiquity, which happen to have been found 
in the archives of particular law-schools. Now, the 
Preface to the Senchus Mor actually contains dis- 
quisitions on all the matters about which Caesar 
declares the Druids to have been specially fond of 
arguing. It in one place sets forth how God made 
the heaven and the earth, but the account is not the 
least like the Mosaic account. It goes off, as Caesar's 
Druids did into a number of extraordinary statements, 

D 



34 COSMOLOGY OF SENCHUS MOR, lect. tl, 

l de sideribus atque eorum motu,' l de mundi ac terrarum 
magnitudine. 1 Among other things, it declares that 
God fixed seven divisions from the firmament to the 
earth, and that the distance he measured from the 
moon to the sun was 244 miles. ' And the first form 
of the firmament was ordained thus : as the shell is 
about the egg, so is the firmament round the earth in 
fixed suspension .... there are six windows in 
each part through the firmament to shed light 
through, so that there are sixty -six windows in it, 
and a glass shutter for each window; so that the 
whole firmament is a mighty sheet of crystal and a 
protecting bulwark round the earth, with three 
heavens, and three heavens about it ; and the seventh 
was arranged in three heavens. This last, however, 
is not the habitation of the angels, but is like a wheel 
revolving round, and the firmament is thus revolving, 
and also the seven planets, since the time when they 
were created.' Parts of the passage reflect the 
astronomical notions known to have been current in 
the Middle Ages, but much of it reads like a fragment 
of a heathen cosmology, to which a later revision has 
given a faint Christian colouring. The same Preface 
contains also some curious speculations on the ety- 
mology of law-terms, and the Preface to the Book of 
Aicill enters, among other things, into the question 
of the difference between genus and species. 

I suggest, therefore, that the same tendencies 



lect. n. DRUIDS AND BREHONS. 35 

which produced among the Celts of the Continent 
the class called the Druids produced among the 
Celts of Ireland the class known to us as the 
Brehons ; nor does it seem to me difficult to connect 
the results of these tendencies with other known 
phenomena of ancient society. There is much reason 
to believe that the Tribe- Chief, or King, whom the 
earliest Aryan records show us standing by the side 
of the Popular Assembly, was priest and judge as 
well as captain of the host. The later Aryan history 
shows us this blended authority distributing or 
1 differentiating ' itself, and passing either to the 
Assembly or to a new class of depositaries. Among 
the Achaean s of Homer, the Chief has ceased to be 
priest, but he is still judge; and his judicial sentences, 
dejMo-Tes, or ' dooms,' however much they may be 
drawn in reality from pre-existing usage, are believed 
to be dictated to him from on high. Among the 
Celts both of Gaul and of Ireland he has ceased to be 
priest, and also probably to be judge, although some 
measure of judicial authority may still belong to his 
office as a c survival.' The order of change thus 
departs from that followed in Athenian history, 
where the institution of kingship survived only in 
the name of the King Archon, who was a judicial 
functionary, and from that followed in Roman 
history, where the Rex Sacrificulus was a hierophant 
or priest. The Popular Assembly, meanwhile, which 

D 2 



3(5 THE KING AND THE BEEHON. lect. a. 

virtually attracted to itself the whole civil and 
criminal jurisdiction of the Kings among the 
Athenians, and which at Rome engrossed the whole 
administration of criminal justice through the com- 
missions it appointed, seems to lose all judicial 
authority among the Celts. Perhaps I may be per- 
mitted thus to describe the change I conceive to 
have taken place among the Celts of Ireland. 
Themis, who in Horner is the assessor of Zeus and 
the source of judicial inspiration to kings, has (so 
to speak) set up for herself. Kings have delegated 
their authority to a merely human assessor, and we 
see by the story which begins the Senchus Mor that, 
even when a Saint is supposed to be present, the 
inspiration of which he is the source does not find 
expression through his lips, nor does it descend on 
the King ; it descends on the professional judge. 
When we obtain our last glimpse of the class which 
has received this inheritance from Chief or King — the 
Brehons, Judges, or Authors of Judgments — they have 
sunk to the lowest depth of misery and degradation 
through the English conquest. At an earlier date 
they are seen divided into families or septs, the 
hereditary law-advisers of some princely or powerful 
house. Hugh McEgan, who wrote the note ' in his 
own father's book,' which I read in the last Lecture, 
was one of the hereditary Brehons attached to the 
McCarthys. But, in the earliest Irish traditions, 



lect. n. THE KING AND THE BREHON. 37 

the functions of the Brehon and the King run very 
much into one another. The most ancient Brehons 
are described as of royal blood, sometimes as king's 
sons. The Tanaists of the great Irish Chiefs, the 
successors elected out of the kindred of each Chief to 
come after him on his death, are said to have occa- 
sionally officiated as judges ; and one of the law- 
tracts, still unpublished, contains the express rule 
that it is lawful for a king, though himself a judge, 
to have a judge in his place. Cormac MacAirt, one 
of the traditional authors of the Book of Aicill, was a 
King in retirement. Apocryphal as his story may be, 
it is one of much significance to the student of ancient 
institutions. He had been accidentally blinded of 
one eye, and is said to have been deposed from his 
regal office or chieftaincy on account of the blemish. 
Coirpri, his son and successor (says the Book of 
Aicill), 'in every difficult case of judgment that came 
to him used to go and ask his father about it, and his 
father used to say to him, " Mj son, that thou mayest 
know " ' — and then proceeded to lay down the law. 

If, without committing ourselves to any specific 
theory concerning the exact extent of the correspond- 
ence, we can assume that there was substantial 
identity between the literary class which produced 
the law-tracts and the literary order attributed to the 
Celtic races by Caesar, we not only do something to 
establish an historical conclusion perhaps more curious 



38 SUCCESSION OF BREHON TO DRUID. lect. e. 

than important, but we remove some serious difficul- 
ties in the interpretation of the interesting and in- 
structive body of archaic law now before us The 
difference between the Druids and their successors, 
the Brehons, would in that case be mainly this : the 
Brehons would be no longer priests. All sacerdotal 
or religious authority must have passed, on the con- 
version of the Irish Celts, to the ' tribes of the saints ' 
— to the missionary monastic societies founded at all 
points of the island — and to that multitude of bishops 
dependent on them, whom it is so difficult to recon- 
cile with any of our preconceived ideas as to ancient 
ecclesiastical organisation. The consequence would 
be that the religious sanctions of the ancient laws, 
the supernatural penalties threatened on their viola- 
tion, would disappear, except so far as the legal rules 
exactly coincided with the rules of the new Christian 
code, the ' law of the letter.' Now, the want of a 
sanction is occasionally one of the greatest difficulties 
in understanding the Brehon law. Suppose a man 
disobeyed the rule or resisted its application, what 
would happen? The learned writer of one of the 
modern prefaces prefixed to the Third Volume of the 
Ancient Laws contends that the administration of 
the Brehon system consisted in references to arbitra- 
tion; and I certainly think myself that, so far as the 
system is known, it points to that conclusion. The 
one object of the Brehons was to force disputants to 



lect. n. SANCTIONS OF BEEHON LAW. 39 

refer their quarrels to a Brehon, or to some person in 
authority advised by a Brehon, and thus a vast deal 
of the law tends to run into the Law of Distress, 
which declares the various methods by which a man 
can be compelled through seizure of his property to 
consent to an arbitration. Hut then one cannot help 
perpetually feeling that the compulsion is weak as 
compared with the stringency of the process of 
modern Courts of Justice; and besides that, why 
should not the man attempted to be distrained upon 
constantly resist with success? Doubtless the law 
provides penalties for resistance; but where is the 
ultimate sanction? Caesar supplies an answer, which 
must, I think, contain a portion of the truth. He 
says that if a Celt of Gaul refused to abide by a 
Druid judgment he was excommunicated : which 
was esteemed the heaviest of penalties. Another 
example which I can give you of the want or weak- 
ness of the sanction in the Brehon law is a very 
remarkable one, and I shall recur to it hereafter. If 
you have a legal claim against a man of a certain rank 
and you are desirous of compelling him to discharge 
it, the Senchus Mor tells you to ' fast upon him.' 
' Notice/ it says, ' precedes distress in the case of the 
inferior grades, except it be by persons of distinction 
or upon persons of distinction; fasting precedes dis- 
tress in their case ' ('Ancient Laws of Ireland,' vol. i. 
p. 113). The institution is unquestionably identical 



40 FASTING AS A MODE OF COMPULSION. lect. ii, 

with one widely diffused throughout the East, which 
is called by the Hindoos c sitting dharna.' It consists 
in sitting at your debtor's door and starving yourself 
till he pays. From the English point of view the 
practice has always been considered barbarous and im- 
moral, and the Indian Penal Code expressly forbids 
it. It suggests, however, the question — what would 
follow if the creditor simply allowed the debtor to 
starve ? Undoubtedly the Hindoo supposes that some 
supernatural penalty would follow; indeed, he gene- 
rally gives definiteness to it by retaining a Brahmin 
to starve himself vicariously, and no Hindoo doubts 
what would come of causing a Brahmin's death. 
We cannot but suppose that the Brehon rule of fast- 
ing was once thought to have been enforced in some 
similar way. Caesar states that the Druids believed 
in the immortality and transmigration of the soul, 
and considered it the key of their system. A Druid 
may thus very well have taught that penal conse- 
quences in another world would follow the creditor's 
death by starvation ; and there is perhaps a pale re- 
flection of this doctrine in the language of the Senchus 
Mor : c He who does not give a pledge to fasting is an 
evader of all; he who disregards all things shall not 
be paid by God or man.' But an Irish Brehon could 
scarcely make any distinct assertion on the subject, 
since fasting had now become a specific ordinance of 
the Christian Church, and its conditions and spiritual 






lect. n. IRISH AND HINDOO LAW. 41 

effects were expressly defined by the Christian priest- 
hood. Theoretically, I should state, a person who 
refused unjustly to yield to fasting had his legal 
liabilities considerably increased, at least, according 
to the dicta of the Brehon commentators; but such 
provisions only bring us to the difficulty of which I 
first spoke, and raise anew the question of the exact 
value of legal rules at a period when Courts of Jus- 
tice are not as yet armed with resistless powers of 
compelling attendance and submission. 

If we are justified in tracing the pedigree of the 
Brehon Code to a system enforced by supernatural 
sanctions, we are able to contrast it in various ways 
with other bodies of law in respect of its mode of 
development. It closely resembles the Hindoo law, 
inasmuch as it consists of what was in all probability 
an original basis of Aryan usage vastly enlarged by 
a superstructure of interpretation which a long suc- 
cession of professional commentators have erected ; 
but it cannot have had any such sacredness, and con- 
sequently any such authority, as the Brahminical 
jurisprudence. Both the Brahmins and the Brehons 
assume that Kings and Judges will enforce their law, 
and emphatically enjoin on them its enforcement ; 
but, while the Brahmin could declare that neglect or 
disobedience would be followed by endless degrada- 
tion and torment, the Brehon could only assert that 
the unlearned brother who pronounced a false judg- 



42 IKISH AM) EAELY ROMAIC LAW. lect. n. 

ment would find blotches come on his cheeks, and 
that the Chief who allowed sound usage to be de- 
parted from would bring bad weather on his country. 
The development of the Brehon law was again parallel 
to that, while there is strong reason for supposing the 
Eoman law to have followed in early times. The 
writer of the Preface to the Third Volume, from which 
I have more than once quoted, cites some observations 
which I published several years ago on the subject 
of the extension of the Roman jurisprudence by the 
agency known as the Responsa Prudentum, the ac- 
cumulated answers (or, as the Brehon phrase is, 
the judgments) of many successive generations of 
famous Roman lawyers ; and he adopts my account 
as giving the most probable explanation of the growth 
of the Brehon law. But in the Roman State a test 
was always applied to the ' answers of the learned,' 
which was not applied, or not systematically applied, 
to the judgments of the Brehons. We never know 
the Romans except as subject to one of the strongest 
of central governments, which armed the law courts 
with the force at its command. Although the Roman 
system did not work exactly in the way to which oui 
English experience has accustomed us, there can, of 
course, be no doubt that the ultimate criterion of the 
validity of professional legal opinion at Rome, as else- 
where, was the action of Courts of Justice enforcing 
rights and duties in conformity with such opinion 



lsct. n. IEISH AKD ENGLISH LAW. 43 

But in ancient Ireland it is at least doubtful whether 
there was ever, in our sense of the words, a central 
government ; it is also doubtful whether the public 
force at the command of any ruler or rulers was ever 
systematically exerted through the mechanism of 
Courts of Justice ; and it is at least a tenable view 
that the institutions which stood in the place of 
Courts of Justice only exercised jurisdiction through 
the voluntary submission of intending litigants. 

Perhaps, however, from our present point of view, 
the strongest contrast is between the ancient law of 
Ireland and the law of England at a period which an 
English lawyer would not call recent. The adminis- 
tration of justice in England, from comparatively early 
times, has been more strongly centralised than in any 
other European country ; but in Ireland there was no 
central government to nerve the arm of the law. The 
process of the English Courts has for centuries past 
been practically irresistible ; the process of the Irish 
Courts, even if it was compulsory, was at the utmost 
extremely weak. The Irish law was developed by 
hereditary commentators ; but we in England have 
always attributed far less authority than does any 
European Continental community to the unofficial 
commentaries of the most learned writers of text- 
books. We obtain our law, and adjust it to the 
needs of each successive generation, either through 
legislative enactment or through the decisions of our 



44 LAW DECLAKED THK0UGH HYPOTHETICAL CASES, lect. n. 

judges on isolated groups of facts established by the 
most laborious methods. But, as I have already- 
stated, the opinion to which I incline is, that no part 
of the Brehon law had its origin in legislation. The 
author of innovation and improvement was the learned 
Brehon, and the Brehon appears to have invented at 
pleasure the facts which he used as the framework 
for his legal doctrine. His invention was necessarily 
limited by his experience, and hence the cases sug- 
gested in the law-tracts possess great interest, as 
throwing light on the society amid which they were 
composed ; but these cases seem to be purely hypo- 
thetical, and onlv intended to illustrate the rule 
which happens to be under discussion. 

In the volume of my own to which I referred a 
few moments ago I said of the early Roman law that 
c great influence must have been exercised (over it) 
by the want of any distinct check on the suggestion 
or invention of possible questions. When the data 
can be multiplied at pleasure, the facilities for evolv- 
ing a general rule are immensely increased. As the 
law is administered among ourselves (in England) 
the judge cannot travel out of the sets of facts ex- 
hibited before him or before his predecessors. Ac- 
cordingly, each group of circumstances which is 
adjudicated upon receives, to employ a Gallicism, 
a sort of consecration. It acquires certain qualities 
which distinguish it from every other case, genuine 



lecl n. CHARACTERISTICS OF BREHOX LAW. ' 45 

or hypothetical. ' I do not think it can be doubted 
that this English practice of never declaring a legal 
rule authoritatively until a state of facts arises to 
which it can be fitted, is the secret of the apparent 
backwardness and barrenness of English law at par- 
ticular epochs, as contrasted with the richness and 
reasonableness of other systems which it more than 
rivals in its present condition. It is true, as I said 
before, even of the Brehon law, that it does not 
wholly disappoint the patriotic expectations enter- 
tained of it. When they are disencumbered of 
archaic phrase and form, there are some things re- 
markably modern in it. I quite agree with one of 
the Editors that, in the ancient Irish Law of Civil 
"Wrong, there is a singularly close approach to mo- 
dern doctrines on the subject of Contributory Negli- 
gence; and I have found it possible to extract from 
the quaint texts of the Book of Aicill some extremely 
sensible rulings on the difficult subject of the Mea- 
sure of Damages, for which it would be vain to study 
the writings of Lord Coke, though these last are 
relatively of much later date. But the Brehon law 
pays heavily for this apparent anticipation of the 
modern legal spirit. It must be confessed that most 
of it has a strong air of fancifulness and unreality. 
It seems as if the Brehon lawyer, after forming (let 
us say) a conception of a particular kind of injury, 
set himself, as a sort of mental exercise, to devise all 



46 CHARACTERISTICS OF BRETON LAW. lect. 11. 

the varieties of circumstance under which the wrong 
could be committed, and then to determine the way 
in which some traditional principle of redress could 
be applied to the cases supposed. This indulgence 
of his imagination drew him frequently into triviality 
or silliness, and led to an extraordinary multiplica- 
tion of legal detail. Four pages of the Book of Aicill 
(a very large proportion of an ancient body of law) 
are concerned with injuries received from dogs in 
dog-fights, and they set forth in the most elaborate 
way the modification of the governing rule required 
in the case of the owners — in the case of the specta- 
tors — in the case of the ' impartial interposer ' — in the 
case of the ' half-interposer,' i.e. the man who tries 
to separate the dogs with a bias in favour of one of 
them — in the case of an accidental looker-on — in the 
case of a youth under age, and in the case of an idiot. 
The same law- tract deals also with the curious sub- 
jects of injuries from a cat stealing in a kitchen, from 
women using their distaffs in a woman-battle, and 
from bees, a distinction being drawn between the 
case in which the sting draws blood and the case in 
which it does not. Numberless other instances could 
be given ; but I repeat that all this is mixed up with 
much that even now has juridical interest, and with 
much which in that state of society had probably the 
greatest practical importance. 

It is not, perhaps, as often noticed as it should be 



lect. n. ENGLISH CASE-LAW, 47 

by English writers on law that the method of enuncia- 
ting legal principles with which our Courts of Justice 
have familiarised us is absolutely peculiar to England 
and to communities under the direct influence of 
English practice. In all Western societies, Legislation, 
which is the direct issue of the commands of the 
sovereign state, tends more and more to become the 
exclusive source of law ; but still in all Continental 
countries other authorities of various kinds are occa- 
sionally referred to, among which are the texts of the 
Roman Corpus Juris, commentaries on Codes and 
other bodies of written law, the unofficial writings of 
famous lawyers, and other branches of the vast litera- 
ture of law holding at most a secondary place in the 
estimation of the English Judges and Bar. Nowhere, 
however, is anything like the same dignity as with us 
attributed to a decided ' case/ and I have found it 
difficult to make foreign lawyers understand why 
their English brethren should bow so implicitly to 
what Frenchmen term the 'jurisprudence ' of a par- 
ticular tribunal. From one point of view English 
law has doubtless suffered through this reluctance to 
invent or imagine facts as the groundwork of rules, 
and it will continue to bear the marks of the injury 
until legislative re-arrangement and re-statement fully 
disclose the stores of common sense which are at pre- 
sent concealed by its defects of language and form. 
On the other hand, these habits of the English Coui'ts 



48 QUESTIONS OF FACT. lect. n 

seem to be closely connected with one of the most 
honourable characteristics of the English system, its 
extreme carefulness about facts. Nowhere else in the 
world is there the same respect for a fact, unless the 
respect be of English origin. The feeling is not shared 
by our European contemporaries, and was not shared 
by our remote ancestors. It has been said — and the 
remark seems to me a very just one — that in early 
times questions of fact are regarded as the simplest of 
all questions. Such tests of truth as Ordeal and Com- 
purgation satisfy men's minds completely and easily, 
and the only difficulty recognised is the discovery of 
the legal tradition and its application to the results of 
the test. Up to a certain point ,110 doubt, our own 
mechanism for the determination of a fact is also a 
mere artifice. We take as our criterion of truth the 
unanimous opinion of twelve men on statements made 
before them. But then the mode of convincing, or 
attempting to convince, them- is exactly that which 
would have to be followed if it were sought to obtain 
a decision upon evidence from the very highest human 
intelligence. The old procedure was sometimes wholly 
senseless, sometimes only distantly rational ; the 
modern English procedure is at most imperfect, and 
some of its imperfection arises from the very consti- 
tution of human nature and human society. I quite 
concur, therefore, in the ordinary professional opinion 
that its view of facts and its modes of ascertaining 



lect. n. FACT AXD LAW. 49 

them are the great glory of English law. 1 am afraid, 
however, that facts must always be the despair of the 
law reformer. Bentham seems to me from several 
expressions to have supposed that if the English Law 
of Evidence were re- constructed on his principles 
questions of fact would cease to present any serious 
difficulty. Almost every one of his suggestions has 
been adopted by the Legislature, and yet enquiries 
into facts become more protracted and complex than 
ever. The truth is that the facts of human nature, 
with which Courts of Justice have chiefly to deal, 
are far obscurer and more intricately involved than 
the facts of physical nature ; and the difficulty of 
ascertaining them with precision constantly increases 
in our age, through the progress of invention and 
enterprise, through the ever-growing miscellaneous- 
ness of all modern communities, and through the ever- 
quickening play of modern social movements. Pos- 
sibly we may see English law take the form which 
Bentham hoped for and laboured for ; every succes- 
sive year brings us in some slight degree nearer to 
this achievement ; and consequently, little as we may 
agree in his opinion that all questions of law are the 
effect of some judicial delusion or legal abuse, we 
may reasonably expect them to become less fre- 
quent and easier of solution. But neither facts nor 
the modes of ascertaining them tend in the least to 

£ 



50 ANCIENT IEISH CUSTOMAEY LAW. uxt. n. 

simplify themselves, and in no conceivable state of 
society will Courts of Justice enjoy perpetual 
vacation. 

I have been at some pains to explain what sort of 
authority the Irish Brehon law did not, in my opinion, 
possess. The 4 law of nature ' had lost all supernatural 
sanction, except so far as it coincided with the ' law 
of the letter.' It had not yet acquired, or had very 
imperfectly acquired, that binding power which law 
obtains when the State exerts the public force through 
Courts of Justice to compel obedience to it. Had it, 
then, an}' authority at all ; and if so, what sort of 
authority ? Part of the answer to this question I en- 
deavoured to give three years ago (' Village Commu- 
nities, in the East and West/ pp. 56, 57); and though 
much more might be said on the subject, I defer it 
till another opportunity. So far as the Brehon law 
declared actual ancient and indigenous practices, 
it shared in the obstinate vitality of all customs when 
observed by a society distributed into corporate natu- 
ral groups. But, besides this, it had another source 
of influence over men's minds, in the bold and never- 
flagging self-assertion of the class which expounded 
it. A portion of the authority enjoyed by the Indian 
Brahminical jurisprudence is undoubtedly to be ex- 
plained in the same way. The Brehon could not. 
like the Brahmin, make any such portentous assertion 
as that his order sprang from the head of Brahma, 



lect. ii. SELF-ASSEETION OF BKEHONS. 51 

that it was an embodiment of perfect purity, and that 
the first teacher of its lore was a direct emanation 
from God. But the Brehon did claim that St. Pat- 
rick and other great Irish saints had sanctioned the 
law which he declared, and that some of them had 
even revised it. Like the Brahmin, too, he never 
threw away an opportunity of affirming the dignity of 
his profession. In these law-tracts the heads of this 
profession are uniformly placed, where Caesar placed 
the Druids, on the same level with the highest classes 
of Celtic society. The fines payable for injury to 
them, and their rights of feasting at the expense of 
other classes (a form of right which will demand much 
attention from us hereafter), are adjusted to those of 
Bishops and Kings. It is more than likely that the 
believing multitude ended by accepting these preten- 
sions. From what we know of that stage of thought 
we can hardly set limits to the amount of authority 
spontaneously conceded to the utterances of a sole 
literary class. It must have struck many that the 
influence of the corresponding class in our own modern 
society far exceeds anything which could have been 
asserted of it from the mere consideration of our 
social mechanism. There is, perhaps, an impression 
abroad that the influence it exerts increases as history 
goes on, an impression possibly produced and certainly 
strengthened by the brilliant passages in which Lord 



62 THE LITERARY CLASS. men. n. 

Macaulay contrasted the well-paid literary labour of 
his own day with the miseries of the literary hack of 
Grub Street a century before. I think that this 
opinion, if broadly stated, is at the very least doubt- 
ful. The class which, to use a modern neologism, 
4 formulates ' the ideas dimly conceived by the multi- 
tude — which saves it mental trouble by collecting 
through generalisation, which is an essentially labour- 
saving process, the scattered fragments of its know- 
ledge and experience — has not always consisted of 
philosophers, historians, and novelists, but had earlier 
representatives in poets, priests, and lawyers. It is 
not at all a paradoxical opinion that these last were 
its most powerful members. For, nowadays, it has 
to cope with the critical faculty, more or less found 
everywhere, and enormously strengthened by observa- 
tion of the methods of physical discovery. No autho- 
rity of our day is possibly comparable with that of 
the men who, in an utterly uncritical age, simply said 
of a legal rule, ' So it has been laid down by the 
learned,' or used the still more impressive formula, 
' It is thus written.' 

While, however, I fully believe that the Brehon 
law possessed great authority, I think also that it 
was in all probability irregularly and intermittently 
enforced, and that partial and local departures from 
it were common all over ancient Ireland. Anybody 
who interested himself in the question of its practical 



lect. n. CASE OP THE NEILLS. 53 

application would have to encounter the very pro- 
blems which are suggested by the Brahminical Hin- 
doo law. The student of this last system, especially if 
he compares it with the infinity of local usage prac- 
tised in India, is constantly asking himself how far 
was the law of the Brahmin jurists observed before 
the English undertook to enforce it through their 
tribunals? The Editor of the Third Volume of the 
Ancient Laws of Ireland has given a very apposite 
example of a problem of the same kind (iii. 146), by 
extracting from the Carew Papers the story of a 
famous dispute as to the headship of the great Irish 
house of O'Neill. Con O'Neill, its chief, had two sons, 
Matthew and Shane. Matthew O'Neill was heir to Con 
O'Neill's earldom of Tyrone, according to the limita- 
tions of the patent. Shane O'Neill urged on the 
English Government that these limitations were void, 
because the King, in granting the earldom, could not 
have been aware that Matthew O'Neill was an adul- 
terine bastard, having been in truth born of the wife 
of a smith in Dundalk. Shane O'Neill has been 
regarded as the champion of purely Irish ideas (see 
Froude, ' English in Ireland,' I. 43); but though the 
rule of legitimacy upon which he insisted conforms 
to our notions, it is directly contrary to the legal 
doctrine of the Book of Aicill, which in one of its 
most surprising passages lays down formally the pro- 
cedure by which the natural father could bring into 



64 THE ANGLO-NOKHAN SETTLEMENT. lect. n. 

his family a son born under the alleged circumstances 
of Matthew O'Neill, on paying compensation to the 
putative parent. Unless Shane O'Neill's apparent 
ignorance of this method of legitimation was merely 
affected for the purpose of blinding the English 
Government, it would seem to follow that the Book 
of Aicill, though its authorship was attributed to 
King Cormac, had not an universally recognised 
authority. 

I do not know that the omission of the English, 
when they had once thoroughly conquered the country, 
to enforce the Brehon law through the Courts which 
they established, has ever been reckoned among the 
wrongs of Ireland. But if they had done this, they 
would have effected the very change which at a 
much later period they brought about in India, igno- 
rantly, but with the very best intentions. They 
would have given immensely greater force and a 
much larger sphere to a system of rules loosely and 
occasionally administered before they armed them 
with a new authority. Even as it was, I cannot 
doubt that the English did much to perpetuate the 
Brehon law in the shape in which we find it. The 
Anglo-Norman settlement on the east coast of Ireland 
acted like a running sore, constantly irritating the 
Celtic regions beyond the Pale, and deepening the 
confusion which prevailed there. If the country had 
been left to itself, one of the great Irish tribes would 



iect. n. CHRISTIAN MORALITY AKD ROMAN LAW. 55 

almost certainly have conquered the rest. All the 
legal ideas which, little conscious as we are of their 
source, come to us from the existence of a strong 
central government lending its vigour to the arm of 
justice would have made their way into the Brehon 
law ; and the gap between the alleged civilisation of 
England and the alleged barbarism of Ireland during 
much of their history, which was in reality narrower 
than is commonly supposed, would have almost wholly 
disappeared. 

Before I close this chapter it is necessary to 
state that the Brehon law has not been unaffected by 
the two main influences which have made the modern 
law of Western Europe different from the ancient, 
Christian morality and Roman jurisprudence. It has 
been modified by Roman juridical ideas in some de- 
gree, though it would be hazardous to lay down with 
any attempt at precision in what degree. I have trust- 
worthy information that, in the tracts translated but 
not yet published, a certain number of Roman legal 
maxims are cited, and one Roman jurisconsult is men- 
tioned by name. So far as the published tracts afford 
materials for an opinion, I am inclined to think that 
the influence of the Roman law has been very slight, 
and to attribute it not to study of the writings of the 
Roman lawyers, but to contact with Churchmen im- 
bued more or less with Roman legal notions. We 
may be quite sure that the Brehons were indebted 



56 WILLS AND CONTRACTS. lect. n 

to them for one conception which is present in the 
tracts — the conception of a Will; and we may pro- 
bably credit the Church with the comparatively ad- 
vanced development of another conception which we 
find here — the conception of a Contract. The origin 
of the rules concerning testamentary bequest which 
are sometimes found in Western bodies of law other- 
wise archaic has been much considered of late years; 
and the weight of learned opinion inclines strongly 
to the view that these rules had universally their 
source in Roman law, but were diffused by the in- 
fluence of the Christian clergy. This assertion 
cannot be quite so confidently made of Contracts ; 
but the saeredness of bequests and the saeredness of 
promises were of about equal importance ' to the 
Church, as the donee of pious gifts ; and, as regards 
the Brehon law, it is plain upon the face of the pub- 
lished sub-tract which is chiefly concerned with Con- 
tract, the Corns Bescna, that the material interests of 
the Church furnished one principal motive for its 
compilation. The Corus Bescna, in which, I may 
observe, a certain confusion (not uncommon in ancient 
law) may be remarked between contracts and grant*, 
between the promise to give and the act or operation 
of giving, contains some very remarkable propositions 
on the subject of Contract. Here, and in other parts 
of the Senchus Mor, the mischiefs of breach of con- 
tract are set forth in the strongest language. ' The 



lect. n. CONTEACT IN ANCIENT IEISH LAW. 57 

world would be in a state of confusion if verbal con- 
tracts were not binding.' c There are three periods 
at which the world dies : the period of a plague, of a 
general war, of the dissolution of verbal contracts.' 
c The world is worthless at the time of the dissolution 
of contracts/ At first sight this looks a good deal 
liker the doctrine of the eighteenth century than of 
any century between the sixth and the sixteenth. 
Let us see, however, what follows when the position 
thus broadly stated has to be worked out. We come, 
in the Corus Bescna, upon the following attempt at 
classification, which I fear would have deeply shocked 
Jeremy Bentham and John Austin : ' How many 
kinds of contracts are there?' asks the Brehon text- 
writer. ' Two,' is the answer. c A valid contract, 
and an invalid contract.' This, no doubt, is absurd, 
but the explanation appears to be as follows. The 
principle of the absolute sacredness of contracts was 
probably of foreign origin, and was insisted upon for 
a particular purpose. It was therefore laid down too 
broadly for the actual state of the law and the actual 
condition of Irish Celtic society. Under such cir- 
cumstances a treatise on Contract takes necessarily 
the form in great measure of a treatise on the grounds 
of invalidity in contracts, on the manifold exceptions 
to an over-broad general rule. Anciently, the power 
of contracting is limited on all sides. It is limited 
by the rights of your family, by the rights of your 



58 CHRISTIANITY AND THE BREHON LAW. LECT. u 

distant kinsmen, by the rights of your co-villagers, 
by the rights of your tribe, by the rights of your 
Chief, and, if you contract adversely to the Church, 
by the rights of the Church. The Corus Bescna is 
in great part a treatise on these archaic limitations. 
At the same time some of the modern grounds of 
invalidity are very well set forth, and the merit may 
possibly be due to the penetration of Roman doctrine 
into the Brehon law-schools. 

Something must be said on the extent to which 
Christian opinion has leavened these Brehon writings. 
Christianity has certainly had considerable negative 
influence over them. It became no longer possible for 
the Brehon to assert that the transgressor of his rules 
would incur a supernatural penalty, and the conse- 
quences of this were no doubt important. But still, as 
you have seen, in the case of ' fasting on a man,' or ' sit- 
ting dharnaj the heathen rule remained in the system, 
though its significance was lost. Again, one positive 
result of the reception by the Brehons of the so-called 
4 law of the letter ' appears to have been the develop- 
ment of a great mass of rules relating to the territorial 
rights of the Church, and these constitute a very 
interesting department of the Brehon law. But there 
has certainly been nothing like an intimate inter- 
penetration of ancient Irish law by Christian prin- 
ciple. If this kind of influence is to be looked for 
anywhere, it must be in the law of Marriage, and the 



lect. n. RELATIONS OF THE SEXES. 59 

cognate branches of Divorce, Legitimacy, and Inher- 
itance. These, however, are the very portions of the 
Brehon law which have been dwelt upon by writers 
convinced that, as regards the relations of the sexes, 
the primitive Irish were near akin to those Celts 
of Britain of whose practices Caesar had heard. 
(B. G. v. 14.) The 'Book of AicilT provides for the 
legitimation not only of the bastard, but of the adul- 
terine bastard, and measures the compensation to be 
paid to the putative father. The tract on ' Social 
Connections ' appears to assume that the temporary 
cohabitation of the sexes is part of the accustomed 
order of society, and on this assumption it minutely 
regulates the mutual rights of the parties, showing 
an especial care for the interests of the woman, even 
to the extent of reserving to her the value of her 
domestic services during her residence in the common 
dwelling. One remark ought, however, to be made 
on these provisions of the Brehon law. It is not in- 
conceivable that, surprising as they are, they may be 
the index to a social advance. Caesar plainly found 
the Celts of the Continent polygamous, living in 
families held together by stringent Paternal Power. 
tie, a Roman, familiar with a Patria Potestas as yet 
undecayed, thinks it worthy of remark that the head 
of a Gallic household had the power of life and death 
over his wives as well as his children, and notices with 
astonishment that, when a husband died under sus- 



60 MARRIAGE IN ANCIENT IRELAND. lect. n. 

picious circumstances, his wives were treated with the 
same cruelty as a body of household slaves at Rome 
whose master had been killed by an unknown hand. 
(B. G., vi. 19.) Now, though very much cannot be 
confidently said about the transition (which, never- 
theless, is an undoubted fact) of many societies from 
polygamy to monogamy under influences other than 
those of religion, it may plausibly be conjectured that 
here and there it had its cause in liberty of divorce. 
The system which permitted a plurality of wives may 
have passed into the system which forbade more than 
one wife at a time, but which did not go farther. The 
monogamy of the modern and Western world is, in 
fact, the monogamy of the Romans, from which the 
license of divorce has been expelled by Christian mo- 
rality. There are hardly any materials for an opinion 
upon the degree of influence exercised by the Church 
over the transformation of marriage-relations in Ire- 
land, but there are several indications that the ecclesi- 
astical rules as to the conditions of a valid marriage 
established themselves very slowly among the ruder 
races on the outskirts of what had been the Roman 
Empire Mr. Burton ('History of Scotland,' ii. 213), in 
speaking of the number of illegitimate claimants who 
brought their pretensions to the Crown of Scotland 
before Edward the First, observes : ; That they should 
have pushed their claims only shows that the Church 
had not yet absolutely established the rule x hat from 



USCT. n. THE SEXES IN IRELAND. 61 

her and lier ceremony and sacrament could alone 
come the union capable of transmitting a right of 
succession to offspring.' The tract on ' Social Con- 
nexions ' notices a 'first ' wife, and the recogni- 
tion may be attributable to the Church, but on 
the whole my impression certainly is that the ex- 
tremely ascetic form under which Christianity was 
introduced into Ireland was unfavourable to its ob- 
taining a hold on popular morality. The common 
view seems to have been that chastity was the profes- 
sional virtue of a special class, for the Brehon tracts, 
which make the assumptions I have described as to 
the morals of the laity, speak of irregularity of life in 
a monk or bishop with the strongest reprobation and 
disgust. At the present moment Ireland is probably 
the one of all Western countries in which the relations 
of the sexes are most nearly on the footing required 
by the Christian theory ; nor is there any reasonable 
doubt that this result has been brought about in the 
main by the Roman Catholic clergy. But this puri- 
fication of morals was effected during the period 
through which monks and monasticism were either 
expelled from Ireland or placed under the ban of the 
law. 

I will take this opportunity of saying that the 
influence of Christianity on a much more famous 
system than the Brehon law has always seemed to 
me to be greatly overstated by M. Troplong and other 



62 CHRISTIANITY AND ROMAN LAW. lect. n 

well-known juridical writers. There is, of course, 
evidence of Christian influence on Roman law in the 
disabilities imposed on various classes of heretics and 
in the limitations of that liberty of divorce which 
belonged to the older jurisprudence. But, even in 
respect of divorce, the modifications strike me as less 
than might have been expected from what we know 
cf the condition of opinion in the Roman world ; and, 
as regards certain improvements said to have been 
introduced by Christianity into the Imperial law of 
slavery, they were probably quickened by its influ- 
ence, but they began in principles which were of 
Stoical rather than of Christian origin. I do not 
question the received opinion that Christianity greatly 
mitigated and did much to abolish personal and pre- 
dial slavery in the West, but the Continental lawyers 
of whom I spoke considerably antedate its influence, 
and take far too little account of the prodigious effects 
subsequently produced by the practical equality of all 
men within the pale of the Catholic priesthood. But 
I principally deprecate these statements, which in 
some countries have almost become professional com- 
monplaces, for two reasons. They slur over a very 
instructive fact, the great unmalleability of all bodies 
of law ; and they obscure an interesting and yet un- 
settled problem, the origin of the Canon law. The 
truth seems to be that the Imperial Roman law did 



lect. n. CANON LAW. 63 

not satisfy the morality of the Christian communities, 
and this is the most probable reason why another 
body of rules grew up by its side and ultimately 
almost rivalled it. 



64 KINSHIP AS THE BASIS OF SOCIETY. user, m, 



LECTUEE III. 

KINSHIP AS THE BASIS OF SOCIETY. 

The most recent researches into the primitive history 
of society point to the conclusion that the earliest 
tie which knitted men together in communities 
was Consanguinity or Kinship. The subject has 
been approached of late years from several different 
sides, and there has been much dispute as to what 
the primitive blood- relationship implied, and how it 
arose ; but there has been general agreement as to the 
fact I have stated. The caution is perhaps needed 
that we must not form too loose a conception of the 
kinship which once stood in the place of the multi- 
form influences which are now the cement of hu- 
man societies. It was regarded as an actual bond of 
union, and in no respect as a sentimental one. The 
notion of what, for want of a better phrase, I must 
call a moral brotherhood in the whole human race has 
been steadily gaining ground during the whole course 
of history, and we have now a large abstract term 



i^ECT. in. PEIMITIVE VIEW OF KINSHIP. 65 

answering to this notion — Humanity. The most 
powerful of the agencies which have brought about 
this broader and laxer view ot' kinship has un- 
doubtedly been Religion, and indeed one great 
Eastern religion extended it until for some purposes 
it embraced all sentient nature. All this modern 
enlargement of the primitive conception of kinship 
must be got rid of before we can bring it home to 
ourselves. There was no brotherhood recognised by 
our savage forefathers except actual consanguinity 
regarded as a fact. If a man was not of kin to 
another there was nothing between them, rle was 
an enemy to be slain, or spoiled, or hated, as much as 
the wild beasts upon which the tribe made war, as 
belonging indeed to the craftiest and the cruellest 
order of wild animals. It would scarcely be too strong 
an assertion that the dogs which followed the camp had 
more in common with it than the tribesmen of an 
alien and unrelated tribe. 

The tribes of men with which the student of 
jurisprudence is concerned are exclusively those be- 
longing to the races now universally classed, on the 
ground of linguistic affinities, as Aryan and Semitic. 
Besides these he has at most to take into account 
that portion of the outlying mass of mankind which 
has lately been called Uralian, the Turks, Hungarians, 
and Finns. The characteristic of all these races, 
when in the tribal state, is that the tribes themselves, 

F 



66 ARYAN, SEMITIC, AND URALIAN TRIBES. lect, iix 

and all subdivisions of them, are conceived bv the 
men who compose them as descended from a single 
male ancestor. Such communities see the Family 
group with which they are familiar to be made up of 
the descendants of a single living man, and of his 
wife or wives; and perhaps they are accustomed to 
that larger group, formed of the descendants of a 
single recently deceased ancestor, which still survives 
in India as a compact assemblage of blood-relatives, 
though it is only known to us through the traces it 
has left in our Tables of Inheritance. The mode of 
constituting groups of kinsmen which they see pro- 
ceeding before their eyes they believe to be identical 
with the process by which the community itself was 
formed. Thus the theoretical assumption is that all 
the tribesmen are descended from some common an- 
cestor, whose descendants have formed sub-groups, 
which again have branched off into others, till the 
smallest group of all, the existing Family, is reached. 
I believe I may say that there is substantial agreement 
as to the correctness of these statements so long as 
they are confined to the Aryan, Semitic, and Uralian 
races. At most it is asserted that, among the re- 
corded usages of portions of these races, there are 
obscure indications of another and an earlier state of 
things. But then a very different set of assertions 
from these are made concerning that large part of 
the human race which cannot be classed as Aryan, 
Semitic, or Uralian. It is, first of all, alleged that 



lect. m. ABNORMAL CONCEPTIONS OF KINSHIP. 67 

there is evidence of the wide prevalence among them 
of ideas on the subject of Consanguinity which are 
irreconcileable with the assumption of common de- 
scent from a single ancestor. Next, it is pointed out 
that some small, isolated, and very barbarous com- 
munities — perhaps long hidden in inaccessible Indian 
valleys, or within the ring of a coral reef in the 
Southern Seas — still follow practices which it would 
be incorrect and unjust to call immoral, because, in 
the view we are considering, they are older than 
morality. The suggestion is finally made that if 
these practices were, in an older stage of the world's 
history, very much more widely extended than at 
present, the abnormal, non- Aryan, non- Semitic, non- 
Uralian notions about kinship of wbich I have spoken 
•would find their explanation. If, indeed, the con- 
clusion here pointed at. expresses the truth, and if 
these practices were really at one time universal, it 
would be an undeserved compliment to the human 
race to say that it once followed the ways of the 
lower animals, since, in point of fact, all the lower 
animals do not follow the practices thus attributed 
to them. But, whatever be the interest of such 
enquiries, they do not concern us till the Kinship of 
the higher races can be distinctly shown to have 
grown out of the Kinship now known only to the 
lower, and even then they concern us only re- 
motely. No doubt several recent writers do believe 

T 2 



08 KINSHIP AND P0WEK lect. hi. 

in the descent of one form of consanguinity from the 
other. Mr. Lewis Morgan, of New York, the author 
of a remarkable and very magnificent volume on 
4 Systems of Consanguinity and Affinity in the Hu- 
man Family,' published by the Smithsonian Institute 
at Washington, reckons no less than ten stages 
(p. 486) through which communities founded on 
kinship have passed before that form of the family 
was developed out of which the Aryan tribes con- 
ceive themselves to have sprung. But Mr. Morgan 
also says of the system known upon the evidence 
actually to prevail among the Aryan, Semitic, and 
Uralian divisions of mankind that (p. 469) it ' mani 
festly proceeds upon the assumption of the existence 
of marriage between single pairs, and of the certainty 
of parentage through the marriage relation/ c Hence/ 
he adds, ' it must have come into existence after the 
establishment of marriage between single pairs.' 

A remark of considerable importance to the stu- 
dent of early usage has now to be made respecting 
the bond of union recognised by these greater races. 
Kinship, as the tie binding communities together, 
tends to be regarded as the same thing with subjec- 
tion to a common authority. The notions of Power 
and Consanguinity blend, but they in nowise super- 
sede one another. We have a familiar example of 
this mixture of ideas in the subjection of the smallest 
group, the Family, to its patriarchal head. Wherever 



LECT. m. KINSHIP AND POWER. 69 

we have evidence of such a group, it becomes difficult 
to say whether the persons comprised in it are most 
distinctly regarded as kinsmen, or as servile or semi- 
servile dependants of the person who was the source 
of their kinship. The confusion, however, if we may 
so style it, of kinship with subjection to patriarchal 
power is observable also in the larger groups into 
which the Family expands. In some cases the Tribe 
can hardly be otherwise described than as the group 
of men subject to some one chieftain. This peculiar 
blending of ideas is undoubtedly connected with the 
extension (a familiar fact to most of us) of the area of 
ancient groups of kindred by artifices or fictions. 
Just as we find the Family recruited by strangers 
brought under the paternal power of its head by 
adoption, so we find the Tribe, or Clan, including a 
number of persons, in theory of kin to it, yet in fact 
connected with it only by common dependence on the 
Chief. I do not affect to give any simple explanation 
of the subjection of the various assemblages of kindred 
to forms of power of which the patriarchal power of 
the head of the family is the type. Doubtless it is 
partly to be accounted for by deep-seated instincts. 
But Mr. Morgan's researches seem to me to have sup- 
plied another partial explanation. He has found that 
among rude and partially nomad communities great 
numbers of kindred, whom we should keep apart in 
mind, and distinguish from one another in language, 



70 KINSHIP AKD POWER. lect. in 

are grouped together in great classes and called by 
the same general names. Every man is related to an 
extraordinary number of men called his brothers, to 
an extraordinary number called his sons, to an extra- 
ordinary number called his uncles. Mr. Morgan 
explains the fact in his own way, but he points out 
the incidental convenience served by this method of 
classification and nomenclature. Though the point 
may not at first strike us, kinship is a clumsy basis 
for communities of any size, on account of the diffi- 
culty which the mind, and particularly the untutored 
mind, has in embracing all the persons bound to any 
one man by tie of blood, and therefore (which is the 
important matter) connected with him by common 
responsibilities and rights. A great extension and 
considerable relaxation of the notion of kinship gets 
over the difficulty among the lower races, but it may 
be that, among the higher, Patriarchal Power answers 
the same object. It simplifies the conceptions of 
kinship and of conjoint responsibility, first in the 
Patriarchal Family and ultimately in the Clan or Tribe. 
We have next to consider the epoch, reached at 
some time by all the portions of mankind destined to 
civilisation, at which tribal communities settle down 
upon a definite space of land. The liveliest account 
which I have read of this process occurs in an ancient 
Indian record which has every pretension to authen- 
ticity. In a very interesting volume published by the 



lect. in. INDIAN MEMOKIAL VERSES. 71 

Government of Madras, and called c Papers on Mirasi 
Right 7 (Madras, 1862), there are printed some ancient 
Memorial Verses, as they are called, which describe the 
manner hi which the Vellalee, a possibly Aryan tribe, 
followed their chief into Tondeimandalam, a region 
roughly corresponding with a state once famous in 
modern Indian history, Arcot. There the Vellalee con- 
quered and extirpated, or enslaved, some more primi- 
tive population and took permanent possession of its 
territory. The poetess — for the lines are attributed 
to a woman — compares the invasion to the flowing of 
the juice of the sugar-cane over a flat surface. (' Mirasi 
Papers/ p. 233.) The juice crystallises, and the crys- 
tals are the various village -communities. In the 
middle is one lump of peculiarly fine sugar, the place 
where is the temple of the god. Homely as is the 
image, it seems to me in one respect peculiarly felici- 
tous. It represents the tribe, though moving in a 
fused mass of men, as containing within itself a prin- 
ciple of coalescence which began to work as soon as 
the movement was over. The point is not always 
recollected. Social history is frequently considered 
as beginning with the tribal settlement, and as though 
no principles of union had been brought by the tribe 
from an older home. But we have no actual know- 
ledge of any aboriginal or autochthonous tribe. 
"Wherever we have any approximately trustworthy 
information concerning the tribes which we discern 



72 SETTLEMENT OF TRIBES ON LAND. lect. in 

in the far distance of history, they have always come 
from some more ancient seat. The Vellalee, in the 
Indian example, must have been agriculturists some- 
where, since they crystallised at once into village- 
communities. 

It has long been assumed that the tribal constitu- 
tion of society belonged at first to nomad communi- 
ties, and that, when associations of men first settled 
dowm upon land, a great change came over them. 
But the manner of transition from nomad to settled 
life, and its effects upon custom and idea, have been 
too much described, as it seems to me, from mere 
conjecture of the probabilities ; and the whole pro- 
cess, as I have just observed, has been conceived as 
more abrupt than such knowledge as we have would 
lead us to believe it to have been. Attention has 
thus been drawn off from one assertion on this sub- 
ject which may be made, I think, upon trustworthy 
evidence — that, from the moment when a tribal com- 
munity settles down finally upon a definite space of 
land, the Land begins to be the basis of society in 
place of the Kinship. The change is extremely 
gradual, and in some particulars it has not even now 
been fully accomplished, but it has been going on 
through the whole course of history. The constitu- 
tion of the Family through actual blood-relationship 
is of course an observable fact, but, for all groups of 
men larger than the Family, the Land on which they 



LBCX. in. KINSHIP AND THE LAND. 73 

live tends to become the bond of union between them, 
at the expense of Kinship, ever more and more 
vaguely conceived. We can trace the development 
of idea both in the large and now extremely miscel 
laneous aggregations of men combined in States 01 
Political Communities, and also in the smaller aggre- 
gations collected in Village- Communities and Manors, 
among whom landed property took its rise. The 
barbarian invaders of the Western Roman Empire, 
though not uninfluenced by former settlements in 
older homes, brought back to Western Europe a 
mass of tribal ideas which the Roman dominion had 
banished from it ; but, from the moment of their 
final occupation of definite territories, a transforma- 
tion of these ideas began. Some years ago I pointed 
out ( c Ancient Law,' pp. 103 et seq.) the evidence fur- 
nished by the history of International Law that the 
notion of territorial sovereignty, which is the basis of 
the international system, and which is inseparably 
connected with dominion over a definite area of land, 
very slowly substituted itself for the notion of tribal 
sovereignty. Clear traces of the change are to be 
seen in the official style of kings. Of our own kings, 
King John was the first who always called himself 
King of England. (Freeman, ; Norman Conquest,' I. 
82, 84.) His predecessors commonly or always called 
themselves Kings of the English. The style of the 
king reflected the older tribal sovereignty for a much 



74 KINGS OF FKANCE AND OF THE FRENCH. lect. m 

longer time in France. The title of King of France 
may no doubt have come into use in the vernacular 
soon after the accession of the dynasty of Capet, but 
it is an impressive fact that, even at the time of the 
Massacre of St. Bartholomew, the Kings of France 
were still in Latin ' Reges Francorum ; ' and Henry 
the Fourth only abandoned the designation because it 
could not be got to fit in conveniently on his coins 
with the title of King of Navarre, the purely feudal and 
territorial principality of the Bourbons. (Freeman, 
loc. cit.) We may bring home to ourselves the trans- 
formation of idea in another way. England was once 
the country which Englishmen inhabited. English- 
men are now the people who inhabit England. The 
descendants of our forefathers keep up the tradition 
of kinship by calling themselves men of English race, 
but they tend steadily to become Americans and 
Australians. I do not say that the notion of con- 
sanguinity is absolutely lost; but it is .extremely 
diluted, and quite subordinated to the newer view of 
the territorial constitution of nations. The blended 
ideas are reflected in such an expression as ' Father- 
land/ which is itself an index to the fact that our 
thoughts cannot separate national kinship from com- 
mon country. No doubt it is true that in our day 
the older conception of national union through con- 
sanguinity has seemed to be revived by theories 
which are sometimes called generally theories of 



lect. m. THEORIES OF NATIONALITY. 75 

Nationality, and of which particular forms are known 
to us as Pan-Sclavisrn and Pan-Teutonism. Such 
theories are in truth a product of modern philology, 
and have grown out of the assumption that linguistic 
affinities prove community of blood. But wherever 
the political theory of Nationality is distinctly con- 
ceived, it amounts to a claim that men of the same 
race shall be included, not in the same tribal, but in 
the same territorial sovereignty. 

We can perceive, from the records of the Hellenic 
and Latin city -communities, that there, and probably 
over a great part of the world, the substitution of com- 
mon territory for common race as the basis of national 
union was slow, and not accomplished without very 
violent struggles. ' The history of political ideas 
begins,' I have said elsewhere, ' with the assumption 
that kinship in blood is the sole possible ground of 
community in political functions ; nor is there any of 
those subversions of feeling which we emphatically 
term revolutions so startling and so complete as the 
change which is accomplished when some other prin- 
ciple — such as that, for instance, of local contiguity 
— establishes itself for the first time as the basis of 
common political action.' The one object of ancient 
democracies was, in fact, to be counted of kin to the 
aristocracies, simply on the ground that the aristocracy 
of old citizens, and the democracy of new, lived within 
the same territorial circumscription. The goal was 



70 TEIBAL AND TERRITORIAL SOVEREIGNTY. Eect. m 

reached in time both by the Athenian Demos and 
by the Roman Plebs ; but the complete victory of 
the Roman popular party was the source of influ- 
ences which have not spent themselves at the present 
moment, since it is one of the causes why the passage 
from the Tribal to the Territorial conception of Sove- 
reignty was much more easy and imperceptible in the 
modern than in the older world. I have before stated 
that a certain confusion, or at any rate indistinctness 
of discrimination, between consanguinity and common 
subjection to power is traceable among the rudiments 
of Aryan thought, and no doubt the mixture of no- 
tions has helped to bring about that identification 
of common nationality with common allegiance to 
the King, which has greatly facilitated the absorption 
of new bodies of citizens by modern commonwealths. 
But the majesty with which the memory of the 
Roman Empire surrounded all kings has also greatly 
contributed to it, and without the victory of the 
Roman Plebeians there would never have been, I 
need hardly say, any Roman Empire. 

The new knowledge which has been rapidly 
accumulating of late years enables us to track pre- 
cisely the same transmutation of ideas amid the 
smaller groups of kinsmen settled on land and form- 
ing, not Commonwealths, but Village -Communities. 
The historian of former days laboured probably under 
no greater disadvantage than that caused by his 



/ 
lecx. m. STATES /LNT> TILLAGE-COMMUNITIES. 77 



unavoidable ignorance of the importance of these 
communities, and by the necessity thus imposed upon 
him of confining his attention to the larger assemblages 
of tribesmen. It has often, indeed, been noticed that 
a Feudal Monarchy was an exact counterpart of a 
Feudal Manor, but the reason of the correspondence 
is only now beginning to dawn upon us, which is, 
that both of them were in their origin bodies of 
assumed kinsmen settled on land and under£oinfr the 
same transmutation of ideas through the fact of 
settlement. The history of the larger groups ends 
iii the modern notions of Country and Sovereignty; 
the history of the smaller in the modern notions of 
Landed Property. The two courses of historical de- 
velopment were for a long while strictly parallel, 
though they have ceased to be so now. 

The naturally organised, self existing, Village- 
Community can no longer be claimed as an institution 
specially characteristic of the Aryan races. M. de 
Laveleye, following Dutch authorities, has described 
these communities as they are found in Java ; and 
M. Renan has discovered them among the obscurer 
Semitic tribes in Northern Africa. But, wherever 
they have been examined, the extant examples of 
the group suggest the same theory of its origin which 
Mr. Freeman ('* Comparative Politics,' .p. 103) has 
advanced concerning the Germanic village- community 
or Mark ; ' This lowest political unit was at first, 



78 STAGES OF THE COMMUNITY. lect. in 

here (i. e. in England) as elsewhere, formed of men 
bonnd together by a tie of kindred, in its first estate 
natural, in a later stage either of kindred natural or 
artificial.' The evidence, however, is now quite ample 
enough to furnish us with strong indications not 
only of the mode in which these communities began, 
but of the mode in which they transformed them- 
selves. The world, in fact, contains examples of 
cultivating groups in every stage, from that in which 
they are actually bodies of kinsmen, to that in which 
the merest shadow of consanguinity survives and the 
assemblage of cultivators is held together solely by 
the land which they till in common. The great steps 
in the scale of transition seem to me to be marked by 
the Joint Family of the Hindoos, by the House- 
Community of the Southern Sclavonians, and by the 
true Village -Community, as it is found first in Russia 
and next in India. The group which I have placed 
at the head, the Hindoo Joint Family, is really a body 
of kinsmen, the natural and adoptive descendants of 
a known ancestor. Although the modern law of 
India gives such facilities for its dissolution that it is 
one of the most unstable of social compounds, and 
rarely lasts beyond a couple of generations, still, so 
long as it lasts, it has a legal corporate existence, and 
exhibits, in the most perfect state, that community of 
proprietary enjoyment which has been so often ob- 
served, and (let me add) so often misconstrued, in 



lect. m. THE HOUSE-COMMUNITY. 79 

cultivating societies of archaic type. c According to 
the true notion of a joint undivided Hindoo family/ 
said the Privy Council, ' no member of the family, 
while it remains undivided, can predicate of the joint 
undivided property that he, that particular member, 
has a certain definite share. . . . The proceeds of 
undivided property must be brought, according to 
the theory, into the common chest or purse, and 
then dealt with according to the modes of enjoy- 
ment of the members of an undivided family.' (Per 
Lord Westbury, Appovier v. Rama Subba Aiyan, 
11 Moore's Indian Appeals, 75.) While, however, 
these Hindoo families, 'joint in food, worship, and 
estate/ are constantly engaged in the cultivation of 
land, and dealing with its produce ' according to 
the modes of enjoyment of an undivided family,' 
they are not village-communities. They are 
only accidentally connected with the land, how- 
ever extensive their landed property may be. 
What holds them together is not land, but 
consanguinity, and there is no reason why they 
should not occupy themselves, as indeed they fre- 
quently do, with tra V or with the practice of a 
handicraft. The House-Community, which comes 
next in the order of development, has been examined 
by M. de Laveleye (P. et s. F. P., p. 201), and by 
Mr. Patterson ('Fortnightly Eeview,' No. xliv.), 
in Croatia, Dalmatia, and Illyria, countries which, 



80 THE HOUSE-COMMUNITY. lect. in. 

though nearer to us than India, have still much in 
common with the parts of the East not brought 
completely under Mahometan influences ; but there 
is reason to believe that neither Roman law nor 
feudalism entirely crushed it even in Western 
Europe. It is a remarkable fact that assemblages of 
kinsmen, almost precisely the counterpart of the 
House-Communities surviving among the Sclavonians, 
were observed by M. Dupin, in 1840, in the French 
Department of the Mevre, and were able to satisfy 
him that even in 1500 they had been accounted 
ancient. These House-Communities seem to me to 
be simply the Joint Family of the Hindoos, allowed to 
expand itself without hindrance and settled for ages 
on the land. All the chief characteristics of the 
Hindoo institution are here — the common home and 
common table, which are always in theory the centre 
of Hindoo family life ; the collective enjoyment of 
property and its administration by an elected manager. 
Nevertheless, many instructive changes have begun 
which show how such a group modifies itself in time. 
The community is a community of kinsmen ; but, 
though the common ancestry is probably to a great 
extent real, the tradition has become weak enough 
to admit of considerable artificiality being introduced 
into the association, as it is found at any given 
moment, through the absorption of strangers from 
outside. Meantime, the land tends to become the 






lect. m. THE VILLAGE-COMMUNITY. 81 

true basis of the group ; it is recognised as of pre- 
eminent importance to its vitality, and it remains 
common property, while private ownership is allowed 
to show itself in moveables and cattle. In the true 
Village- Community, the common dwelling and com- 
mon table which belong alike to the Joint Family and 
to the House-Community, are no longer to be found. 
The village itself is an assemblage of houses, con- 
tained indeed within narrow limits, but composed of 
separate dwellings, each jealously guarded from the 
intrusion of a neighbour. The village lands are no 
longei the collective property of the community ; the 
arable lands have been divided between the various 
households ; the pasture lands have been partially 
divided; onlv the waste remains in common. In com- 
paring the two extant types of Village-Community 
which have been longest examined by good observers, 
the Russian and the Indian, we may be led to think 
that the traces left on usage and idea by the ancient 
collective enjoyment are faint exactly in proportion 
to the decay of the theory of actual kinship among 
the co- villagers. The Russian peasants of the same 
village really believe, we are told, in their common 
ancestry, and accordingly we find that in Russia the 
arable lands of the village are periodically re-dis- 
tributed, and that the village artificer, even should he 
carry his tools to a distance, works for the profit of 
his co- villagers. In India, though the villagers are 

G 



82 THE TILLAGE-COMMUNITY. u:ct. in 

still a brotherhood, and though membership in the 
brotherhood separates a man from the world outside, 
it is very difficult to say in what the tie is conceived 
as consisting. Many palpable facts in the composition 
of the community are constantly inconsistent with the 
actual descent of the villagers from any one ancestor. 
Accordingly, private property in land has grown 
up, though its outlines are not always clear ; the 
periodical re-division of the domain has become a 
mere tradition, or is only practised among the ruder 
portions of the race ; and the results of the theoretical 
kinship are pretty much confined to the duty of sub- 
mitting to common rules of cultivation and pasturage, 
of abstaining from sale or alienation without the 
consent of the co-villagers, and (according to some 
opinions) of refraining from imposing a rack-rent 
upon members of the same brotherhood. Thus, the 
Indian Yillage-Community is a body of men held to- 
gether by the land which they occupy : the idea of 
common blood and descent has all but died out. A 
few steps more in the same course of development — 
and these the English law is actually hastening — will 
diffuse the familiar ideas of our own country and 
time throughout India; the Village-Community will 
disappear, and landed property, in the full English 
sense, will come into existence. Mr. Freeman tells 
us that Uffington, Gillingham, and Tooting were in 
ail probability English village -comnmnities originally 



lect. in. TRANSFORMATION OF VILLAGE-COMMUNITIES. 83 

settled by the Uffingas, Gillingas, and Totingas, 
three Teutonic joint-families. But assuredly all men 
who live in Tooting do not consider themselves 
brothers ; they barely acknowledge duties imposed 
on them by their mutual vicinity ; their only real tie 
is through their common country. 

The c natural communism ' of the primitive cul- 
tivating groups has sometimes been described of late 
years, and more particularly by Russian writers, as 
an anticipation of the most advanced and trenchant 
democratic theories. No account of the matter could 
in my judgment be more misleading. If such terms 
as i aristocratic ' and c democratic ' are to be used at 
all, I think it would be a more plausible statement 
that the transformation and occasional destruction of 
the village-communities were caused, over much of 
the world, by the successful assault of a democracy 
on an aristocracy. The secret of the comparatively 
slight departure of the Russian village -communities 
from what may be believed to have been the primitive 
type, appears to me to lie in the ancient Russian 
practice of colonisation, by which swarms were con- 
stantly thrown off from the older villages to settle 
somewhere in the enormous wastes ; but the Indian 
communities, placed in a region of which the popula- 
tion has from time immemorial been far denser than 
in the North, bear many marks of past contests 
between the ancient brctherhood of kinsmen and a 

G 2 



84 TEANSFOEMATION OF VILLAGE-COMMUJSITIES. lect. iij. 

class of dependants outside it struggling for a share 
in the land, or for the right to use it on easy terms. 
I am aware that there is some grotesqueness at first 
sight in a comparison of Indian villagers, in their 
obscurity and ignorance, and often in their squalid 
misery, to the citizens of Athens or Borne ; yet no 
tradition concerning the origin of the Latin and 
Hellenic states seems more trustworthy than that 
which represents them as formed by the coalescence 
of two or more village-communities, and indeed, even 
in their most glorious forms, they appear to me 
throughout their early history to belong essentially to 
that type. It has often occurred to me that Indian 
functionaries, in their vehement controversies about 
the respective rights of the -various classes which 
make up the village-community, are unconsciously 
striving to adjust, by a beneficent arbitration, the 
claims and counter-claims of the Eupatrids and the 
Demos, of the Populus and the Plebs. There is 
even reason to think that one well-known result of 
long civil contention in the great states of antiquity 
has shown itself every now and then in the village- 
communities, and that all classes have had to submit 
to that sort of authority which assumed its most in- 
nocent shape in the office of the Roman Dictator, its 
more odious in the usurpation of the Greek Tyrant. 
The founders of a part of one modern European aris- 
tocracy, the Danish, are known to have been originally 



lbcx. m. FEUDALISATION OF EUROPE. 86 

peasants who fortified their houses during deadly vil- 
lage struggles and then used their advantage. 

Such commencements of nobility as that to which 
I have just referred, appear, however, to have been ex- 
ceptional in the Western world, and other causes must 
be assigned for that great transformation of the Village- 
Community which has been carried out everywhere in 
England, a little less completely in Germany, much less 
in Russia and in all Eastern Europe. I have attempted 
in another work ( c Village- Communities in the East 
and West,' pp. 131 etseq.) to give an abridged account 
of all that is known or has been conjectured on the 
ubject of that ' Feudalisation of Europe' which has 
had the effect of converting the Mark into the Manor, 
the Village -Community into the Fief; and I shall pre- 
sently say much on the new light which the ancient 
laws of Ireland have thrown on the early stages of the 
process. At present I will only observe that, when 
completed, its effect was to make the Land the exclu- 
sive bond of union between men. The Manor or Fief 
was a social group wholly based upon the possession 
of land, and the vast body of feudal rules which 
clustered round this central fact are coloured by it 
throughout. That the Land is the foundation of the 
feudal system has, of course, been long and fully re- 
cognised; but I doubt whether the place of the fact 
in history has been sufficiently understood. It marks 
a phase in a course of change continued through long 



86 DISSOLUTION OF FEUDAL GROUPS. lect. m. 

ages and in spheres much larger than that of landed 
property. At this point the notion of common kin- 
ship has been entirely lost. The link between Lord 
and Vassal produced by Commendation is of quite a 
different kind from that produced by Consanguinity. 
When the relation which it created had lasted some 
time, there would have been no deadlier insult to the 
lord than to attribute to him a common origin with 
the great bulk of his tenants. Language still retains 
a tinge of the hatred and contempt with which the 
higher members of the feudal groups regarded the 
.ower; and the words of abuse traceable to this aver- 
sion are almost as strong as those traceable to differ- 
ences of religious belief. There is, in fact, little to 
choose between villain, churl, miscreant, and boor. 

The break-up of the feudal group, far advanced in 
most European countries, and complete in France and 
England, has brought us to the state of society in 
which we live. To write its course and causes would 
be to re -write most of modern history, economical as 
well as political. It is not, however, difficult to see 
that without the ruin of the smaller social groups, 
and the decay of the authority which, whether popu- 
larly or autocratically governed, they possessed over 
the men composing them, we should never have had 
several great conceptions which lie at the base of our 
stock of thought. Without this collapse, we should 
nevei have had the conception of land as an exchange- 






lect. m. MODERN CONCEPTIONS. 67 

able commodity, differing only from others in the 
limitation of the supply; and hence, without it, 
some famous chapters of the science of Political 
Economy would not have been written. Without it, 
we should not have had the great increase in modern 
times of the authority of the State — one of many 
names for the more extensive community held to- 
gether by common country. Consequently, we 
should not have had those theories which are the 
foundation of the most recent systems of jurispru- 
dence — the theory of Sovereignty, or (in other words) 
of a portion in each community possessing unlimited 
coercive force over the rest — and the theory of Law 
as exclusively the command of a sovereign One or 
Number. We should, again, not have had the fact 
which answers to these theories — the ever-increasing 
activity of Legislatures ; and, in all probability, that 
famous test of the value of legislation, which its 
author turned into a test of the soundness of morals, 
would never have been devised — the greatest happi- 
ness of the greatest number. 

In saying that the now abundant phenomena of 
primitive ownership open to our observation strongly 
suggest that the earliest cultivating groups were 
formed of kinsmen, that these gradually became 
bodies of men held together by the land which they 
cultivated, and that Property in Land (as we now 
understand it) grew out of the dissolution of these 



88 NO SEPARATION OF STAGES. lect. iil. 

latter assemblages, I would not for a moment be 
understood to assert that this series of changes can be 
divided into stages abruptly separated from one 
another. The utmost that can be affirmed is that 
certain periods in this history are distinguished by 
the predominance, though not the exclusive existence, 
of ideas proper to them. Here, as elsewhere, the 
world is full of ' survivals,' and tbe view of society 
as held together by kinship still survives when it is 
beginning to be held together by land. Similarly, 
the feudal conception of social relations still exercises 
powerful influence when land has become a mer- 
chantable commodity. There is no country in which 
the theory of land as a form of property like any 
other has been more unreservedly accepted than our 
own. Yet English lawyers live in face feodorum. 
Our law is saturated with feudal principles, and our 
customs and opinions are largely shaped by them. 
Indeed, within the last few years we have even dis- 
covered that vestiges of the village -community have 
not been wholly effaced from our law, our usages, and 
our methods of tillage. 

The caution that the sequence of these stages 
does not imply abrupt transition from any one to the 
next seems to me especially needed by the student 
of the Ancient Laws of Ireland. Dr. Sullivan, of 
whose Introduction to the lately published lectures of 
0' Curry I have already spoken, dwells with great 



iect. m. OWNEKSHIP IN ANCIENT IEELAM). 88 

emphasis on the existence */f private property among 
the ancient Irish, and on the jealousy with which it 
was guarded. But though it is very natural that a 
learned Irishman, stung by the levity which has 
denied to his ancestors all civilised institutions, 
should attach great importance to the indications of 
private ownership in the Brehon law, I must say 
that they do not, in my judgment, constitute its real 
interest. The instructiveness of the Brehon tracts, 
at least to the student of legal history, seems to me 
to arise from their showing that institutions of 
modern stamp may be in existence with a number of 
rules by their side which savour of another and a 
greatly older order of ideas. It cannot be doubted, 
I think, that the primitive notion of kinship, as the 
cement binding communities together, survived 
longer among the Celts of Ireland and the Scottish • 
Highlands than in any Western society, and that it 
is stamped on the Brehon law even more clearly than 
it is upon the actual land-law of India. It is 
perfectly true that the form of private ownership in 
land which grew out of the appropriation of portions 
of the tribal domain to individual households of 
tribesmen is plainly recognised by the Brehon 
lawyers ; yet the rights of private owners are 
limited by the controlling rights of a brotherhood of 
kinsmen, and the control is in some respects even 
more stringent than that exercised over separate 



W THE IRISH FAMILY. lect. ni 

property by an Indian village -community. It is alsc 
true that another form of ownership in land, that 
which had its origin in the manorial authority of the 
lord over the cultivating group, has also begun tc 
show itself; yet, though the Chief of the Clan is 
rapidly climbing to a position answering to the Lord- 
ship of a Manor, he has not fully ascended to it, and 
the most novel information contained in the tracts is 
that which they supply concerning the process of 
ascent. 

The first instructive fact which strikes us on the 
threshold of the Brehon law is, that the same word, 
i Fine,' or Family, is applied to all the subdivisions of 
Irish society. It is used for the Tribe in its largest 
extension as pretending to some degree of political 
independence, and for all intermediate bodies down 
to the Family as we understand it, and even for 
portions of the Family (Sullivan, ' Introduction/ 
clxii.). It seems certain that each of the various 
groups into which ancient Celtic society was divided 
conceived itself as descended from some one common 
ancestor, from whom the name, or one of the names, 
of the entire body of kinsmen was derived. Although 
this assumption was never in ancient Ireland so 
palpable a fiction as the affiliation of Greek races or 
communities on an heroic eponymous progenitor, it 
was probably at most true of the Chief and his 
house so far as regarded the Irish Tribe taken as a 



lect. m. FAMILIES AKD PLACES. 9] 

political unit. But it is probable that it was occa- 
sionally, and even often true of the smaller group, the 
Sept, sub-Tribe, or Joint Family, which appears to 
me to be the legal unit of the Brehon tracts. The 
traditions regarding the eponymous ancestor of this 
group were distinct and apparently trustworthy, and 
its members were of kin to one another in virtue of 
their common descent from the ancestor who gave 
his name to all. The chief for the time being was, 
as the Anglo-Irish judges called him in the famous 
c Case of Gavelkind,' the caput cognationis. 

Not only was the Tribe or Sept named after this 
eponymous ancestor, but the territory which it occu- 
pied also derived from him the name which was in 
commonest use. I make this remark chiefly because 
a false inference has been drawn from an assertion 
of learned men concerning the connection between 
names of families and names of places, which properly 
understood is perfectly sound. It has been laid 
down that, whenever a family and place have the 
same name, it is the place which almost certainly 
gave its name to the family. This is no doubt true 
of feudalised countries, but it is not true of countries 
as yet unaffected by feudalism. It is likely that 
such names as k O'Brien's Country ' and ' Macleod's 
Country ' are as old as any appropriation of land by 
man; and this is worth remembering when we are 
tempted to gauge the intelligence of an early writer 



92 CONSTITUTION OF IRISH TRIBE. lect. m 

by the absurdity of his etymologies. ' Hibernia ' 
from an eponymous discoverer, ' Hyber,' sounds 
ridiculous enough : but the chronicler who gives it 
may have been near enough the age of tribal society 
to think that the connection between the place and 
the name was the most natural and probable he could 
suggest. Even the most fanciful etymologies of the 
Greeks, such as Hellespont, from Helle, may have 
been ' survivals ' from a primitive tribal system of 
naming places. In the relation between names and 
places, as in much more important matters, feudalism 
has singularly added to the importance of land. 

Let me now state the impression which, partly 
from the examination of the translated texts, legal 
and non-legal, and partly by the aid of Dr. Sulli- 
van's Introduction, I have formed of the agrarian 
organisation of an Irish Tribe. It has been long 
settled, in all probability, upon the tribal territory. 
It is of sufficient size and importance to constitute a 
political unit, and possibly at its apex is one of the nu- 
merous chieftains whom the Irish records call Kings. 
The primary assumption is that the whole of the tribal 
territory belongs to the whole of the tribe, but in fact 
large portions of it have been permanently appro- 
priated to minor bodies of tribesmen. A part is 
allotted in a special way to the Chief as appurtenant 
to his office, and descends from Chief to Chief accord- 
ing to a special rule of succession. Other portions are 



lect. m. CONSTITUTION OF IRISH TRIBE. 98 

occupied by fragments of the tribe, some of which are 
under minor chiefs or ' Garths,' while others, though 
not strictly ruled by a chief, have somebody of a 
noble class to act as their representative. All the 
unappropriated tribe -lands are in a more especial way 
the property of the tribe as a whole, and no portion 
can theoretically be subjected to more than a tempo- 
rary occupation. Such occupations are, however, fre- 
quent, and among the holders of tribe-land, on 
these terms, are groups of men calling themselves 
tribesmen, but being in reality associations formed 
by contract, chiefly for the purpose of pasturing 
cattle. Much of the common tribe-land is not occu- 
pied at all, but constitutes, to use the English expres- 
sion, the ' waste' of the tribe. Still this waste is 
constantly brought under tillage or permanent pas- 
ture by settlements of tribesmen, and upon it cul- 
tivators of servile status are permitted to squat, par- 
ticularly towards the border. It is the part of the 
territory over which the authority of the Chief tends 
steadily to increase, and here it is that he settles his 
1 fuidhir,' or stranger-tenants, a very important class 
— the outlaws and L broken ' men from other tribes 
who come to him for protection, and who are only 
connected with their new tribe by their dependence 
on its chief, and through the responsibility which he 
incurs for them. 

There is probably great uniformity in the compo- 



94 UNIFORMITY OF GROUPS. lect. m 

sition of the various groups occupying, permanently 
or temporarily, the tribal territory. Each seems to 
be more or less a miniature of the large tribe which 
includes them all. Each probably contains free- 
men and slaves, or at all events men varying mate- 
rially in personal status, yet each calls itself in some 
sense a family. Each very possibly has its appro- 
priated land and its waste, and conducts tillage and 
grazing on the same principles. Each is either 
under a Chief who really represents the common an- 
cestor of all the free kinsmen, or under somebody 
who has undertaken the responsibilities devolving 
according to primitive social idea upon the natural 
head of the kindred. In enquiries of the class upon 
which we are engaged the important fact which I 
stated here three years ago should always be borne 
in mind. When the first English emigrants settled 
in New England they distributed themselves in vil- 
lage communities ; so difficult is it to strike out new 
paths of social life and new routes of social habit. 
It is all but certain that, in such a society as that of 
which we are speaking, one single model of social 
organisation and social practice would prevail, and 
none but slight or insensible departures from it 
would be practicable or conceivable. 

But still the society thus formed is not altogether 
stationary. The temporary occupation of the com- 
mon tribe-land tends to become permanent, either 



f.ECT. m. GROUPS NOT STATIONARY. 05 

through the tacit sufferance or the active consent of 

the tribesmen. Particular families manage to elude 

the theoretically periodical re-division of the common 

patrimony of the group; others obtain allotments 

with its consent as the reward of service or the 

appanage of office ; and there is a constant transfer of 

lands to the Church, and an intimate intermixture of 

tribal rights with ecclesiastical rights. The establish- 
es o 

ment of Property in Severalty is doubtless retarded 
both by the abundance of land and by the very law 
under which, to repeat the metaphor of the Indian 
poetess, the tribal society has crystallised, since each 
family which has appropriated a portion of tribe-land 
tends always to expand into an extensive assemblage 
of tribesmen having equal rights. But still there is a 
co-operation of causes always tending to result in 
Several Property, and the Brehon law shows that bv 
the time it was put into shape they had largely 
taken effect. As might be expected, the severance of 
land from the common territory appears to have been 
most complete in the case of Chiefs, many of whom 
have large private estates held under ordinary tenure 
in addition to the demesne specially attached to their 
signory. 

Such is the picture of Irish tribal organisation in 
relation to the land which I have been able to present 
to my own mind. All such descriptions must be 
received with reserve: among other reasons, because 



96 THEORIES OF RACE. lect. m. 

even the evidence obtainable from the law-tracts is 
still incomplete. But if the account is in any degree 
correct, all who have attended to this class of subjects 
will observe at once that the elements of what we are 
accustomed to consider the specially Germanic land- 
system are present in the territorial arrangements of 
the Irish tribe. Doubtless there are material dis- 
tinctions. Kinship as yet, rather than landed right, 
knits the members of the Irish groups together. The 
Chief is as yet a very different personage from the 
Lord of the Manor. And there are no signs as yet 
even of the beginnings of great towns and cities. 
Still the assertion, which is the text of Dr. Sullivan's 
treatise, may be hazarded without rashness, that 
everything in the Germanic has at least its embryo 
in the Celtic land system. The study of the Brehon 
law leads to the same conclusion pointed at by so 
many branches of modern research. It conveys a 
stronger impression than ever of a wide separation 
between the Aryan race and races of other stocks, 
but it suggests that many, perhaps most, of the dif- 
ferences in kind alleged to exist between Aryan sub- 
races are really differences merely in degree of 
development. It is to be hoped that contemporary 
thought will before long make an effort to emancipate 
itself from those habits of levity in adopting theories 
of ra:e which it seems to have contracted. Many of 



lect. m. THEORIES OF RACE. i*7 

these theories appear to have little merit except the 
facility which they give for building on them infer- 
ences tremendously out of proportion to the mental 
labour which they cost the builder. 



28 TRIBAL PROPERTY IN IRELAND. lect. i* 



LECTURE IV. 

THE TRIBE AND THE LAND. 

It has been very commonly believed that, before 
the agrarian measures of James the First, Ireland was 
one of the countries in which private property in land 
was invested with least sacredness, and in which 
forms of ownership generally considered as bar- 
barous most extensively prevailed Spenser and 
Davis certainly suggest this opinion, and several 
modern writers have adopted it. The Brehon law- 
tracts prove, however, that it can only be received 
with considerable qualification and modification, and 
they show that private property, and especially 
private property in land, had long been known in 
Ireland at the epoch to which they belong, having 
come into existence either through the natural dis- 
integration of collective ownership or through the 
severance of particulai estates from the general 
tribal domain. Nevertheless it cannot, I think, be 
doubted that at the period to which the tracts are 
an index much land was held throughout Ireland 
under rules or customs savouring of the ancient 



lect. it. TANISTRY AND GAVELKIND. 99 

collective enjoyment, and this I understand Dr, 
Sullivan to allow. (Introduction, p. cxliv.) 

Part of the evidence of the fact jusfc stated is 
tolerably familiar to students of Irish history. At 
the beginning of the seventeenth century the Anglo- 
Irish Judges declared the English Common Law to 
be in force throughout Ireland, and from the date of 
this decision all land in the country descended to the 
eldest son of the last owner, unless its devolution was 
otherwise determined by settlement or will. In Sir 
John Davis's report of the case and of the arguments 
before the Court, it is recited that hitherto all land 
in Ireland had descended either under the rule of 
Tanistry or under the rules of Gavelkind. The 
system of inheritance here called Gavelkind is thus 
described : When a landowning member of an Irish 
Sept died, its chief made a re-distribution of all the 
lands of the Sept. He did not divide the estate of 
the dead man among his children, but used it to 
increase the allotments of the various households of 
which the Sept was made up. The Judges treated 
both Tanistry and Gavelkind as systems of succession 
after death, of a peculiarly barbarous and mischievous 
kind; and, as systems of succession, I shall consider 
them hereafter. But all systems of succession after 
death bear a close relation to ancient modes of en- 
joyment during life ; for instance, in the Joint Unji* 



100 IRISH GAVELKIND. lect. iv. 

vided Family of the Hindoos, the stirpes, or stocks, 
which are only known to European law as branches 
of inheritors, are actual divisions of the family, and 
live together in distinct parts of the common dwelling. 
('Calcutta Review/ July 1874, p. 208.) The so- 
called Irish Gavelkind belongs to a class of institu- 
tions very common in the infancy of law ; it is a 
contrivance for securing comparative equality among 
the joint proprietors of a common fund. The re- 
distribution here takes place at the death of a head 
of a household; but if equality were secured by what 
is practically the same process — viz., re-division after 
a fixed period of years — an institution would be pro- 
duced which has not quite died out of Europe at the 
present moment, and of which there are traditions in 
all old countries. At the same time I have no doubt 
that, when the Irish Gavelkind was declared illegal, 
it was very far from being the only system of succes- 
sion known to Ireland except Tanistiy, and I think it 
probable that many different modes of enjoyment 
and inheritance were abolished by the decision giving 
the land to the eldest son. 

It was the actual observation of peculiar agricul- 
tural usages, special methods of cultivation, and 
abnormal rules of tenure which mainly enabled G. 
L. Yon Maurer to restore the German Mark to know- 
ledge ; and it was by using Yon Maurer' s results as 
his key that Nasse was able to decipher the scattered 



legt. iv. RUNDALE HOLDINGS. 101 

references to the 'Agricultural Community of the 
Middle Ages ' in a variety of English documents. I 
venture to think that this class of observation has not 
been carried far enough in Ireland to yield material 
for a confident opinion, but there certainly seem to 
be vestiges of ancient collective enjoyment in the 
extensive prevalence of ' rundale ' holdings in parts 
of the country. Under this system a definite area of 
land is occupied by a group of families. In the form 
now most common, the arable lands are held in se- 
veralty, while pasture and bog are in common. But 
as lately as fifty years since, cases were frequent in 
which the arable land was divided into farms which 
shifted among the tenant-families periodically, and 
sometimes annually. Even when no such division 
was made, a well-known relic of the Mark-system, as 
it showed itself in Germany and England, was occa- 
sionally found : the arable portion of the estates was 
composed of three different qualities of soil, and each 
tenant had a lot or lots in the land of each quality, 
without reference to position. What was virtually 
the same system of tenure prevailed quite recently in 
the Scottish Highlands. I have ascertained that the 
families which formed the village -communities only 
just extinct in the Western Highlands had the lands 
of the village re-distributed among them by lot at 
fixed intervals of time; and I gather from Mr. Skene's 
valuable note on ' Tribe Communities in Scotlan & ' 



102 OWNERSHIP AM) OCCUPATION. leci it. 

(appended to the second volume of his edition of 
Fordun's Chronicle), that he believes this system of 
re -division to have been once universal, or at least 
widely extended, among the Scottish Celts. 

It is to be observed that (so far as I am able to 
learn) the Irish holdings in c rundale' are not forms of 
property, but modes of occupation. There is always 
some person above who is legally owner of all the 
land held by the group of families, and who, 
theoretically, could change the method of holding, 
although, practically, popular feeling would put the 
greatest difficulties in his way. We must bear in 
mind, however, that archaic kinds of tenancy are con- 
stantly evidence of ancient forms of proprietorship. 
This is so in countries in which superior ownership 
has arisen through the natural course of events — 
through purchase from small allodial proprietors, 
through colonisation of village waste-lands become 
in time the lord's waste, or (in an earlier state of 
society) through the sinking of whole communities of 
peasants into villeinage, and through a consequent- 
transformation of the legal theory of their rights. 
But all this process of change would be gravely mis- 
construed if it were supposed that, because a Chief or 
Lord had come to be recognised as legal owner of 
the whole tribal domain, or of great portions of it, he 
therefore altered the accustomed methods of occupa- 
tion and cultivation, or (as some would even seem to 



lbct. it. THE COEUS BESCtfA. 103 

think) he began at once to regard the occupying 
peasantry as modern lessees or modern tenants at 
will. No doubt the ancient type of ownership long 
served as the model for tenancy; and the common 
holdings, dying out as property, survived as occupa- 
tion. And, if this were the case in other countries, 
much more would it be so in Ireland, where property 
has changed hands so often and so violently; where, 
during whole centuries, the owners of land neither 
regarded, nor were in a position to regard, the occu- 
piers save as payers of rent and dues; and where the 
conception of a landlord acting on his legal ownership 
with a view to improvement and increase of produc- 
tion is altogether modern. 

The chief Brehon law-tract, which sets forth the 
mutual rights of the collective tribe and of individual 
tribesmen or households of tribesmen in respect of 
tribal property, is called the Corus Bescna, and is 
printed in the Third Volume of the official edition. 
It presents great difficulties. I quite agree with the 
Editors that the commentary and glosses constantly 
contradict and obscure the text, either because the 
commentators did not understand it or because they 
belonged to a later period and a different stage of 
legal relations. But the most serious doubt which 
occurs to the student of the text arises from the 
strong and palpable bias of the compiler towards the 
interests of the Church; indeed, part f the tract is 



104 INFLUENCE OF THE CHUKCH. lect. rr. 

avowedly devoted to the law of Church property and 
of the organisation of religious houses. When this 
writer affirms that, under certain circumstances, a 
tribesman may grant or contract away tribal land, his 
ecclesiastical leaning constantly suggests a doubt as 
to his legal doctrine. Does he mean to lay down that 
the land may be parted with generally and in favour 
of anybody, or only that it may be alienated in favour 
of the Church? This difficulty of construction has 
an interest of its own. I am myself persuaded that 
the influence of the Christian Church on law has been 
very generally sought for in a wrong quarter, and 
that historians of law have too much overlooked its 
share in diffusing the conceptions of free contract, 
individual property, and testamentary succession, 
through the regions beyond the Roman Empire 
which were peopled by communities held together by 
the primitive tie of consanguinity. It is generally 
agreed among scholars that Churchmen introduced 
these races to wills and bequests ; the Brehon tracts 
suggest to me at least that, along with the sacredness 
of bequests, they insisted upon the sacredness of con- 
tracts ; and it is well known that, in the Germanic 
countries, their ecclesiastical societies were among the 
earliest and largest grantees of public or c folk ' 
land (Stubbs, c Constitutional History/ vol. i. p. 154). 
The Will, the Contract, and the Separate Ownership, 
were in fact indispensable to the Church as the donee 



M5CT. iv. THE 'FINE* THE SEFT. 105 

of pious gifts; and they were also essential and char- 
acteristic elements in the civilisation amid which the 
Church had been reared to maturity. It is possible 
that the compiler of the Corus Bescna may have been 
an ecclesiastic, as he certainly would have been in any 
society except the Irish ; but, if he were a lawyer, he 
writes as a lawyer would state the case on behalf of a 
favourite and important client. Let me add that all 
the Brehon writers seem to me to have a bias towards 
private or several, as distinguished from collective, 
property. No doubt it was then, as always, the great 
source of legal business, and it may have seemed to 
them, and it possibly was, the index to such advance 
in civilisation as their country was capable of 
making. 

My own strong opinion is that the c Fine,' whose 
rights and powers are the principal theme of the 
Corus Bescna, and whose name the translators render 
1 Tribe,' is neither the Tribe in its largest extension, 
nor, on the other hand, the modern Family or group 
of descendants from a living ancestor, but the Sept. 
It is a body of kinsmen whose progenitor is no longer 
living, but whose descent from him is a reality, and 
neither a myth nor a fiction. It is the Joint Family 
of the Hindoos, but with the characteristics of that 
group considerably modified through settlement on 
the land. This peculiar assemblage or corporation 
of blood-relatives, which has been referred to by rie 



100 THE JOINT UNDIVIDED FAMILI lect. rc 

several times before, is formed by the continuance 
of the family union through several, and it may be 
through an indefinite number of generations. The 
rule throughout most of the civilised world is that, 
for all purposes of law, families are broken up into 
individuals or dissolved into a number of new families 
by the death of their head. But this is not necessarily 
the case. The group made up of those whom we 
vaguely call our relatives — of our brothers, nephews, 
great-uncles, uncles, and cousins, no less than those 
related to us in the ascending and descending lines — 
might very well, after any number of deaths, remain 
knitted together not only by blood and affection, but 
by mutual rights and duties prescribed or sanctioned 
by the law. An association of this sort is well known 
to the law of India as the Joint Undivided Family, or, 
to give the technical description, the Family, 'joint in 
food, worship, and estate.' If a Hindoo has become 
the root of a family it is not necessarily separated 
by his death ; his children continue united for 
legal purposes as a corporate brotherhood, and 
some definite act of one or more of the brethren is 
required to effect a dissolution of the plexus of mutual 
rights and a partition of the family property. The 
family thus formed by the continuance of several 
generations in union is identical in outline with a 
group very familiar to the students of the older 
Eoman law — the Agnatic Kindred. The Agnates 



lect. it. THE TKIBE OF THE BKEHON TKACTS. 10; 



were that assemblage of persons who would have been 
under the patriarchal authority of some commor. an- 
cestor, if he had lived long enough to exercise it. The 
Joint Family of the Hindoos is that assemblage of 
persons who would have joined in the sacrifices at 
the funeral of some common ancestor, if he had died 
in their lifetime. In the last case the sacerdotal 
point of view merely takes the place of the legal 01 
civil. 

So far as we are able, amid the disadvantages 
under which we are placed by the obscurity of our 
authorities, let us examine the legal qualities which 
the ancient Irish law attributes to this brotherhood 
of kinsmen as it was found in Ireland. First of 
all, the 4 Tribe ' of the Brehon tracts is a corporate, 
organic, self-sustaining unit. ' The Tribe sustains 
itself.' (' Ancient Laws of Ireland,' ii. 283.) Its 
continuity has begun to depend on the land which it 
occupies — ' land,' says one of the still unpublished 
tracts, c is perpetual man ' — but it is not a purely 
land-owning body ; it has c live chattels and dead 
chattels,' distinguished from those of individual tribes- 
men. (' Ancient Laws of Ireland,' ii. 289. ) Nor is it 
a purely cultivating body; it may follow a pro- 
fessional calling. (Ibid., iii. 49-51.) A portion of 
the tribal domain, probably the arable .and choice 
pasture lands, has been allotted to separate households 
of tribesmen, but they hold their allotments subject 



108 ALIENATION OF TEIBE LAND. lect. iv. 

to the controlling rights of the entire brotherhood, 
and the primary or fundamental rule is that they are 
to keep their shares of tribe-land intact. ' Every 
tribesman is able to keep his tribe-land ; he is not to 
sell it or alienate or conceal it, or give it to pay for 
crimes or contracts.' ('Ancient Laws of Ireland,' ii. 
283.) 4 No person should leave a rent upon his land 
or upon his tribe which he did not find upon it/ 
(Ibid. , hi. 52, 53.) c Everyone is wealthy who keeps 
his tribe-land perfect as he got it, who does not leave 
greater debt upon it than he found on it.' (Ibid., 
iii. 55.) 

Under certain circumstances the tribesman may 
alienate, by grant, contract, or bequest, a certain 
quantity of the tribe-land allotted to him ; but what 
are the circumstances, and what the quantity, are 
points on which we cannot venture to make any 
precise statement, so obscure and contradictory are 
the rules set forth. But the grantee primarily con- 
templated is certainly the Church, though it seems 
clear that there is a general power of alienation, either 
with the consent of the entire tribal brotherhood or 
under pressure of strong necessity. It further appears 
to be beyond question that the tribesman has consider- 
ably greater power of disposition over property which 
he has acquired than over property which has devolved 
on him as a member of a tribe, and that he has more 
power over acquisitions made by his own unaided! 



lect. iv. ALIENATION OF TRIBE LAM). 10& 

industry than over acquisitions made through profits 
arising from the cultivation of tribal land. ' No per- 
son should grant land except such as he has purchased 
himself, unless by the common consent of the tribe.' 
(' Ancient Laws of Ireland/ iii. 52, 53.) ' He who 
has not sold or bought (i.e., he who keeps his tribe- 
land as he obtained it) is allowed to make grants, 
each according to his dignity (i.e., as the commentatoi 
explains, to the extent of one -third or one -half of his 
tribe-land)/ 'He who neither sells nor purchases 
may give as far as the third of his tribe-share in case 
of little necessity and one-half in case of great neces- 
sity/ (' Ancient Laws of Ireland,' iii. 47.) ' If it be 
land that acquires it, it is one-half ; . . . if he be a 
professional man, it is two-thirds of his contracts ' 
(iii. 49). 

The distinction between acquired property and 
property inherited or received from kinsmen, and 
the enlarged power of parting with the first, are 
found in many bodies of ancient law — in our own 
early law among others. The rule that alienations, 
otherwise unlawful, may be made under pressure of 
necessity, is found in manj parts of Hindoo law. 
The rule requiring the consent of the collective 
brotherhood to alienations, with many minor rules 
of this part of Brehon law, constantly forms part of 
the customs of Indian and Russian village-communi- 
ties ; and the duty of following common practices of 



UO PKOFESSIONAL TEIBES. lect. iv. 

tillage, which is the bequest from these communities 
which lasted longest in the Germanic countries, is 
classed by the Corus Bescna, along with Marriage, 
as one of the fundamental institutions of the Irish 
people. ('Ancient Laws of Ireland/ iii. 17.) But 
much the most striking and unexpected analogies in 
the Brehon law on the subject of Tribesmen and the 
Tribe are those which it has with the Hindoo law of 
Joint Undivided Families. Under the Brahminical 
Indian law, whenever a member of a joint family has 
acquired property through special scientific know- 
ledge or the practice of a liberal art, he does not 
bring it into the common fund, unless his accomplish- 
ments were obtained through a training given to him 
by his family or at their expense. The whole law on 
the subject was much considered in a strange case 
which arose before the High Court of Madras 
(' Madras High Court Reports,' ii. 56), where a joint 
family claimed the gains of a dancing-girl. The de- 
cision of the Court is thus summarised by the Re- 
porter : ' The ordinary gains of science are divisible 
(i.e., they are brought into hotchpot upon partition of 
an undivided estate), when such science has been 
imparted at the family expense and acquired while 
receiving a family maintenance. It is otherwise 
when the science has been imparted at the expense 
of persons not members of the learner's family.' The 
very counterparts of the Indian rule and of the Indian 



user. IV. THE TllIBE AKD THE JOINT FAMILY. Ill 

exception are found in the ancient Irish law. ' If 
(the tribesman) be a professional man — that is, if the 
property be acquired by judicature or poetry, or any 
profession whatsoever — he is capable of giving two- 
thirds of it to the Church . . . but, if it was the 
lawful profession of his tribe, he shall not give of 
the emolument of his profession but just as he could 
give of the land of his tribe.' (Cor us Bescna, ' Ancient 
Laws of Ireland/ hi. 5.) 

It will be seen from the instances which I have 
given that the rules of the Irish Brehon law regulating 
the power of individual tribesmen to alienate their 
separate property answer to the rules of Indian 
Brahminical law which regulate the power of indi- 
vidual members of a joint family to enjoy separate 
property. The difference is material. The Hindoo 
law assumes that collective enjoyment by the whole 
brotherhood is the rule, and it treats the enjoyment 
of separate property by individual brethren as an 
exception — an exception, I may add, round which an 
enormous mass of law has now clustered. On the 
other hand, the Brehon law, so far as it can be un- 
derstood, seems to me reconcileable with no other 
assumption than that individual proprietary rights 
have grown up and attained some stability within 
the circle of the tribe. The exercise of -these rights 
is at the same time limited by the controlling powers 
of the collective brotherhood >f tribesmen ; and to 



112 * IRISH CO-TENANCY. LECT. PP. 

these last, as to the Agnatic Kindred at Rome, some 
ultimate right of succession appears to be reserved. 
Hence the Irish legal unit is not precisely a Joint 
Family; if the Brehon law is to be trusted, it has 
considerably less of the c natural communism ' which 
characterises the Indian institution. The ' Fine ' of 
the tracts is constantly spoken of in connection with 
landed property, and, whenever it is so connected, I 
imagine it to have undergone some of the changes 
which are constantly brought about by contact with 
the land, and I figure it to myself in that case as 
a Mark or Village-Community, in which the ideas 
proper to the older group out of which it grew, the 
Joint Family, have survived in exceptional strength. 
It in this respect approaches the Russian rather than 
the Indian type of village- community. 

T.he c Judgments of Co -Tenancy ' is a Brehon 
law-tract, still unpublished at the time at which I 
write, and presenting, in its present state, consider- 
able difficulties of interpretation. It puts, at the 
outset, the question, — c Whence does Co-Tenancy 
arise?' The answer given is, 'From several heirs 
and from their increasing on the land.' The tract 
then goes on to explain that the land is, in the first 
year, to be tilled by the kinsmen just as each pleases; 
that in the second year they are to exchange lots; 
that in the third year the boundaries are to be 
fixed ; and that the whole process of severance is to 



/ 
lect. it. STAGES m HISTORY OF CULTIVATING GROUPS. 113 

be consummated in the tenth year. I trust it is 
not a presumptuous conjecture that the order of 
change here indicated is more trustworthy than the 
time fixed for each of its stages. The period of 
ten years for the entire transition from collective to 
separate property seems to me greatly too short, and 
hard to reconcile with other Irish evidence ; and I 
suggest that the Brehon lawyer, attached to the 
institution of separate property, like the rest of his 
class, is depicting rather an ideal than an actual set 
of arrangements. The process, however, which is 
here described, if it be spread over a much longer 
space of time, is really in harmony with all our 
knowledge of the rise and progress of cultivating 
communities. First a Joint Family, composed of c se- 
veral heirs increasing on the land,' is found to have 
made a settlement. In the earliest stage the various 
households reclaim the land without set rule. Next 
comes the system of exchanging lots. Finally, the 
portions of land are enjoyed in severalty. 

The references to the ancient collective owner- 
ship and ancient collective enjoyment in the non- 
legal Irish literature appear to be very rare. But my 
friend Mr. Whitley Stokes has supplied me with two 
passages in point. The c Liber Hymnorum,' attri- 
buted to the eleventh century, contains (folio 5a) the 
following statement : ' Numerous were the human 
beings in Ireland at that time (i.e. the time of the 

I 



114 PERIODICAL ALLOTMENTS IN IRELAND lect. iv, 

sons of Aed Slane, a.d. 658-694), and such was their 
number that they used not to get but thrice nine 
ridges for each man in Ireland, to wit, nine of bog, 
and nine of smooth (arable), and nine of wood/ 
Another Irish manuscript, believed to date from the 
twelfth century, the ' Lebor na Huidre,' says that 
c there was not ditch, nor fence, nor stone-wall 
round land, till came the period of the sons of Aed 
Slane, but (only) smooth fields. Because of the 
abundance of the households in their period, there- 
fore it is that they introduced boundaries in Ireland/ 
These curious statements can, of course, only be 
regarded as authority for the existence, at the time 
when they were penned, of a belief that a change 
from a system of collective to a system of restricted 
enjoyment had occurred at some period or other in 
Ireland, and of a tradition respecting the date of the 
change. But it is instructive to find both of them 
attributing it to the growth of population, and an 
especial interest attaches to the account given in the 
1 Liber Hymnorum ' of the newer distribution of 
land which was thought to have taken the place of 
something older. The periodical allotment to each 
household of a definite portion of bog land, wood 
land, and arable land wears a strong resemblance to 
the apportionment of pasture and wood and arable 
land which still goes on in our day under the com- 
munal rules of the Swiss Allmenden (see Laveleye, 



LECT. rv. DOUBLE OKIGIN OF LANDED PROPERTY. 115 

1 P. et s. F. P.,' pp. 268 et seq.), and which is an un- 
doubted legacy from the ancient constitution of cer- 
tain Swiss Cantons as Teutonic Hundreds. 

Property in Land, wherever it has grown out of 
the gradual dissolution of the ancient cultivating 
communities, has many characteristics which distin- 
guish it from the form of landed property with which 
Englishmen and men of English race are best ac- 
quainted. The area within which this last form of 
property is the sole or dominant kind of ownership 
is now much larger than it was, through its diffusion 
over all North America, except Mexico, and over all 
colonies settled for the first time by Englishmen, 
but our nearly exclusive familiarity with it has led, I 
think, to our very commonly over-estimating the ex- 
tent to which it prevails over the world, and even over 
Western Europe. Its parentage may be traced, not to 
the decaying authority of the Tribe over the several- 
ties of the tribesmen, but to the ever-increasing 
authority of the Chief, first over his own domain and 
1 booked ' land, and secondarily over the tribe-lands. 
The early growth of the power of the Chief is thus of 
the utmost interest in the history of landed property, 
and I propose to discuss it at some length in the suc- 
ceeding Lectures. Meantime, let me say something 
on the transmutations which Patriarchal Power is 
observed, as a fact, to undergo in the assemblages of 



116 EXPANSION OF THE PATEIAECHAL FAMILY, lect. IV, 

men held together by kinship which are still found 
making a part of Aryan communities. 

The Joint Undivided Family, wherever its be- 
ginning is seen in such communities, springs univer- 
sally out of the Patriarchal Family, a group of natural 
or adoptive descendants held together by subjection 
to the eldest living ascendant, father, grandfather, or 
great-grandfather. Whatever be the formal prescrip- 
tions of the law, the head of such a group is always 
in practice despotic, and he is the object of a respect, 
if not always of an affection, which is probably seated 
deeper than any positive institution. But in the 
more extensive assemblages of kinsmen which consti- 
tute the Joint Family the eldest male of the eldest 
line is never the parent of all the members, and not 
necessarily the first in age among them. To many 
of them he is merely a distant relative, and he may 
possibly be an infant. The sense of patriarchal right 
does not die out in such groups. Each father or grand- 
father has more power than anybody else over his wife, 
children, and descendants ; and there is always what 
may be called a belief that the blood of the collective 
brotherhood runs more truly and purely in some one 
line than in any other. Among the Hindoos, the eldest 
male of this line, if of full mental capacity, is gene- 
rally placed at the head of the concerns of the joint 
family ; bui where the institution survives in any 
completeness, he is not a Paterfamilias, nor is he 



IBCT. IV. ELECTIVE HEADSHIP OF FAMILIES. 117 



owner of the family property, but merely manager 
of its affairs and administrator of its possessions. If 
lie is not deemed fit for his duties, a ' worthier ' kins- 
man is substituted for him by election, and, in fact, 
the longer the joint family holds together, the more 
election gains ground at the expense of birth. The 
head or manager of the Sclavonic House- Communities 
(which, however, are much more artificial than the 
Hindoo Joint Families) is undisguisedly an elective 
representative, and in some of our examples a 
council of kinsmen belonging to the eldest line 01 
descent takes the place of an individual administrator. 
The whole process I will describe as the gradual 
transmutation of the Patriarch into the Chief. 
The general rule is that the Chief is elected, with a 
strong preference for the eldest line. Sometimes he 
is assisted by a definite council of near kinsmen, 
and sometimes this council takes his place. On the 
whole, where the body of kinsmen formed on the type 
of the Joint Family is a purely civil institution, the 
tendency is towards greater disregard of the claims 
of blood. But in those states of society in which the 
brotherhood is not merely a civil confraternity, but a 
political, militant, self-sustaining group, we can per- 
ceive from actually extant examples that a separate 
set of causes come into operation, and that the Chief, 
as military leader, sometimes more than regains the 
privileges which he lost through the decay d! the 



118 REVIVAL OF PATEIA POTESTAS. lect. iy 

tradition which connected him with the common 
root of all the kindred. True patriarchal authority, 
however, revives whenever the process of expansion 
into a group is interrupted and whenever one of the 
brotherhood plants himself at a distance from the rest. 
A Hindoo who severs himself from a Joint Family, 
which the law as administered by the English tribu- 
nals gives him great facilities for doing, acquires 
much greater power over his family, in our sense of 
the word, than he had as a member of the larger 
brotherhood. Similarly, in the developed Joint 
Family or Village-Community, as the little society 
becomes more populous, as the village spreads, as the 
practice of living in separate dwellings extends, as the 
land rather than the common lineage gets to be re- 
garded as the cement of the brotherhood, each man 
in his own house practically obtains stringent patri- 
archal authority over his wife, children, and servants. 
But then, on the other hand, the separated member 
of the joint family, or the head of the village house- 
hold, will himself become the root of a new joint 
brotherhood, unless his children voluntarily dissolve 
the family union after his death. Thus all the 
branches of human society may or may not have 
been developed from joint families which arose out of 
an original patriarchal cell ; but, wherever the Joint 
Family is an institution of an Aryan lace, we see it 
springing from such a cell, and, when it dissolves, we 
see it dissolving into a number of such cells. 



gecx y DOUBLE ORIGIN OF LANDED PROPERTY 119 



LECTURE Y. 

THE CHIEF AND HIS ORDER. 

Nothing seems to me to have been more clearly 
shown by recent researches than the necessity of 
keeping apart the Tribe and the Tribal Chief as dis- 
tinct sources of positive institutions. The lines of 
descent are constantly entwined, but each of them is 
found to run up in the end to an independent origin. 
If I were to apply this assertion to political history, 
I should be only repeating much of what has been 
said by Mr. Freeman in his excellent work on l Com- 
parative Politics/ Confining myself to the history 
of private institutions, let me observe that the dis- 
tinction which I have drawn should be carefully 
borne in mind by those who desire to penetrate to 
the beginnings of Property in Land. The subject has 
been greatly obscured by the practice, now brought 
home to the early writers on feudal law, of syste- 
matically passing over or misconstruing all forms of 
proprietary enjoyment which they could not explain 
on their own principles ; and hitherto the truth has 
only been directly seen through some of the rules of 



120 DOUBLE ORIGIN OF LANDED PROPERTY. lect. v. 

tenure. It may now, however, be laid down without 
rashness that Property in Land, as known to coramu 
nities of the Aryan race, has had a twofold origin. 
It has arisen partly from the disentanglement of the 
individual rights of the kindred or tribesmen from the 
collective rights of the Family or Tribe, and partly 
from the growth and transmutation of the sovereignty 
of the Tribal Chief. The phenomena attributable to 
the double process seem to me easily distinguishable 
from one another. Both the sovereignty of the Chief 
and the ownership of land by the Family or Tribe 
were in most of Western Europe passed through the 
crucible of feudalism ; but the first reappeared in 
some well-marked characteristics of military or 
knightly tenures, and the last in the principal rules 
of non-noble holdings, and among them of Socage, the 
distinctive tenure of the free farmer. The status of 
the Chief has thus left us one bequest in the rule of 
Primogeniture, which, however, has long lost its most 
ancient form ; another in the right to receive certain 
dues and to enforce certain monopolies ; and a third 
in a specially absolute form of property which was 
once exclusively enjoyed by the Chief, and after him 
by the Lord, in the portion of the tribal territory 
which formed his own domain. On the other hand, 
several systems of succession after death, and among 
them the equal division of the land between the chil- 
dren, have sprung out of tribal ownership in various 



sect. T. TWO FCEMS OF PROPERTY IN FRANCE. 121 

stages of decay ; and it has left another set of traces 
{not quite so widely extended), in a number of minute 
customary rules which govern tillage and occasionally 
regulate the distribution of the produce. 

The fate of this double set of institutions in Eng- 
land and in France appears to me most instructive. I 
have frequently dwelt in this place on the erroneousness 
of the vulgar opinion which dates the extreme subdivi- 
sion of the soil of France from the first French Revo- 
lution, and from the sale of the Church lands and of 
the estates of the emigrant nobility. A writer — I 
was going to say as commonly read as Arthur Young, 
but certainly as often mentioned as if he were com- 
monly read — notices this morcellement, on the very 
eve of the French Revolution, and immediately after 
it, as the great feature which distinguished France 
from England. ' From what we see in England,' he 
says, ( c Travels in 1787, '88, and '89,' p. 407) ' we can- 
not form an idea of the abundance in France of small 
properties, that is, little farms belonging to those who 
cultivate them.' He estimates that more than a third 
of the kingdom was occupied by them — a very large 
proportion, when the extent of Church land in France 
is taken into account: but recent French investi^a- 
tions have shown reasons for thinking that the true 
proportion was still larger, and that it was rather 
growing than diminishing, through that extravagance 
of the nobles which Court life fostered, and which 



122 PRIMOGENITURE AND EQUAL DIVISION. lect. v, 

compelled them to sell their domains to peasants in 
small parcels. Young clearly saw that this subdivi- 
sion of the soil was the result of some legal rule ; and 
strongly dissenting from the Eevolutionary leaders 
who wished to carry it farther, he declared that 
4 a law ought to be passed to render all division below 
a certain number of arpents illegal.' 

It seems to have very generally escaped notice 
that the law of equal or nearly equal division 
after death was the general law of France. The 
rule of primogeniture was of exceptional appli- 
cation, and was for the most part confined to lands 
held by knightly tenure ; indeed, in the South 
of France, where the custom of equal division was 
strengthened by the identical rule of the Roman juris- 
prudence, the privileges of the eldest son were only 
secured by calling in the exceptional rules of which 
the Roman Law gives the benefit to milites (or 
soldiers on service) when making their wills or regu- 
lating their successions, and by laying down that 
every chevalier, and every noble of higher degree, 
was a miles within the meaning of the Roman juridi- 
cal writers. The two systems of succession and the 
two forms of property lay side by side, and there 
were men alive quite recently who could remember 
the bitter animosities caused by their co-existence 
and antagonism. A very great part of the land held 
by laymen belonged to the peasantry, ai?d descended 



lect. v. SIGNORIAL DUES. 123 

according to the rule of equal division, but eldest son 
after eldest son succeeded to the signory. Yet it 
was not the rule of primogeniture followed in noble 
descents which was the true grievance ; at most it 
became a grievance under the influence of the peculiar 
vein of sentiment introduced by Rousseau. The 
legacy from tribal sovereignty to signorial privilege, 
which was really resented, was that which I placed 
second in order. The right to receive feudal dues 
and to enforce petty monopolies, now almost extin- 
guished in England by the measures to which the 
Copyhold Commission has given effect, had ceased long 
before the end of the last century to be of any consi- 
derable importance to the class which was invested 
with it ; but M. de Tocqueville has explained, in his 
4 Ancien Regime' (i. 18), that it made up almost the 
entire means of living which the majority of the 
French nobility possessed. A certain number of 
noblemen, besides their feudal rights, had their terres, 
or domain, belonging to them in absolute property, and 
sometimes of enormous extent ; and the wealthiest 
members of this limited class, the grands, who so 
frequently appear in French Court history, but who, 
away from the Court, were much the most respected 
and beloved of their order, formed the counterpart, 
from the legal point of view, of the English landed 
proprietary. The rest of the nobles lived mainly, not 
on rent but on their feudal dues, and eked out a 



124 SIGNORIAL DUES. lect. v. 

meagre subsistence by serving the King in arms. 
The sense of property in the soil was thus not in the 
lord but in the peasantry ; and the peasantry viewed 
the exercise of signorial rights with a feeling closely 
akin to that which is inspired by a highly oppressive 
tax. The condition of sentiment produced by it is 
even now a political force of some moment in France : 
and a similar, though a far weaker, repulsion is known 
to have been caused in this country by the taking of 
tithes in kind. It is a significant fact that, where 
the ownership is acknowledged to reside in the 
superior holder, the exaction of even an extreme 
rent from the tenants below has very rarely been 
regarded with the same bitterness of resentment. 

The change, therefore, which took place in France 
at the first Revolution was this : the land -law of 
the people superseded the land-law of the nobles. 
In England the converse process has been gone 
through, and what has occurred is obviously in har- 
mony with much else in English history. The system 
of the nobles has become in all essential particulars 
the system of the people. The rule of primogeniture, 
which once applied only to knightly holdings, came 
to apply to the great bulk of English tenures, except 
the Gavelkind of Kent and some others of merely 
local importance. This part of the change took place 
at a remote epoch, and its circumstances are involved 
in much obscurity; and we know little more of it 



lect. v. CONTRAST BETWEEN FRANCE AND ENGLAND. 12£ 

with certainty than that it was rapidly proceeding 
between the time at which Glanville and the time at 
which Bracton wrote. Glanville, probably not earlier 
than the thirty-third year of Henry the Second's reign, 
expresses himself as if the general rule of law caused 
lands held by free cultivators in socage to be divided 
equally between all the male children at the death of 
the last owner ; Bracton, probably not later than the 
fifty -second year of Henry the Third, writes as if the 
rule of primogeniture applied universally to military 
tenures and generally to socage tenures. But another 
branch of the process was postponed almost to our 
own day. Possibly not many Englishmen have re- 
cognised with as much clearness as a recent French 
writer ( Doniol, c La Revolution Francaise et la Feo- 
dalit£') that the transmutation of customary and copy- 
hold into freehold property, which has been proceed- 
ing for about forty years under the conduct of the 
Copyhold and Enclosure Commissioners, is the peace- 
ful and insensible removal of a grievance which did 
more than any other to bring about the first French 
Revolution and to prevent the re-establishment of 
the ancient political order. But long before there 
was a Copyhold Commission, the great mass of Eng- 
lish landed property had assumed certain character- 
istics which strongly distinguished -it from the 
peasant property of the Continent as it existed 
before it was affected by the French Codes, and as 



L2G ENGLISH FORM OF OWNERSHIP. lect. y. 

it is still found in some countries. This last form 
of proprietorship was very generally fettered by the 
duty of cultivation in some particular way, and, as a 
rule, could not be dealt with so as to bar the rights 
reserved to the children and widow of the owner by 
the law of succession. The traces of a similar species 
of ownership, probably once widely diffused, may 
still be here and there discerned through the customs 
of particular English manors. I repeat the opinion 
w^hich I expressed three years ago, that our modern 
English conception of absolute property in land is 
really descended from the special proprietorship en- 
joyed by the Lord, and more anciently by the tribal 
Chief, in his own Domain. It would be out of place 
to enter here on a discussion of the changes which 
seem to me desirable in order to make the soil of 
England as freely exchangeable as the theory now 
generally accepted demands ; but to the principle of 
several and absolute property in land I hold this 
country to be committed. I believe I state the in- 
ference suggested by all known legal history when 
I say that there can be no material advance in civili- 
sation unless landed property is held by groups at 
least as small as Families ; and I again remind you 
that we are indebted to the peculiarly absolute 
English form of ownership for such an achievement 
as the cultivation of the soil of North America. 

Before describing to you the new light which the 



sect. Y. IRISH THEORIES OF CHIEF AND TRIBE. 127 

Ancient Laws of Ireland throw on the primitive con- 
dition of the institutions of which I have been speak- 
ing let me give you one word of caution as to the 
statements of modern Irish writers respecting the 
original relations of the Irish Tribe and of the Irish 
Tribal Chief. Unhappily the subject has been dis- 
cussed in the spirit of the later agrarian history of 
Ireland. On the one hand, some disputants have 
thought to serve a patriotic purpose by contending 
that the land of each Tribe belonged absolutely to it- 
self and was its common property, and that the Chief 
was a mere administrative officer, rewarded for his 
services in making a fair distribution of the territory 
among the tribesmen by a rather larger share of its 
area than the rest, which was allotted to him as his 
domain. Contrariwise, some writers, not perhaps 
actuated by much kindliness to the Irish people, have 
at least suggested that they were always cruelly op- 
pressed by their superiors, and probably by their 
natural chiefs more than any others. These authors 
point to the strong evidence of oppression by the 
Chiefs which the books of the English observers of 
Ireland contain. Edmund Spenser and Sir John Davis 
cannot have merely intended to calumniate the Irish 
native aristocracy when they emphatically declared 
that the ' chiefs do most shamefully rackrent their 
tenants, and spoke with vehement indignation of the 
exactions from which the tribesmen suffered, the 



128 IRISH THEORIES OF CHIEF AND TRIBE. lect. t. 

1 coshering,' and the ; coin and livery,' which occur 
over and over again in their pages. A third school,, 
of a very different order from these, has representa- 
tives among the most learned Irishmen of our day. 
They resent the assertion that the land belonged to 
the tribe in common as practically imputing to the 
ancient Irish that utter barbarism to which private 
property is unknown. They say that traces of owner- 
ship jealously guarded are found in all parts of 
the Brehon laws, and they are on the whole apt to 
speak of the vassalage to the Chief which these laws- 
attribute to the tribesmen as if it implied something 
like modern tenancy in the latter and modern owner- 
ship in the former. But they say that the relation, 
of landlord and tenant was regulated by careful and 
kindly provisions, and they ascribe the degradation 
of the system, like the other evils of Ireland, to 
English cupidity and ignorance. The Norman nobles 
who first settled in Ireland are well known to have 
become in time Chieftains of Irish Tribes ; and it is 
suggested that they were the first to forget their 
duties to their tenants and to think of nothing but 
their privileges. Nor is there anything incredible in 
this last assumption. An English settler in India 
who buys land there is often reputed a harder land- 
lord than the native zemindars, his neighbours, not 
because he intends to be harsher (indeed in some 
things he is usually far more considerate and bounti- 



lect. v. THE AGKAKIAtf SYSTEM KOT STATIONAKY. 129 

ful), but because he is accustomed to a stricter system 
and cannot accommodate himself to the loose and 
irregular play of relations between native landowner 
and native tenant. 

I cannot wholly concur in any one of these theo- 
ries concerning Chief and Tribe. Each seems to me 
to contain a portion of truth, but not the whole. Let 
me first say that the whole land-system shadowed forth 
in the Brehon laws does seem to me to have for its 
basis the primary ownership of the tribe-land by the 
Tribe. It is also true that the Chief appears to exer- 
cise certain administrative duties in respect of this 
land, and that he has a specific portion of the tribe- 
land allotted to him, in the vicinity of his residence or 
stronghold, for the maintenance of his household and 
relatives. But this is not all. As we see the system 
through the law, it is not stationary, but shifting, de- 
veloping, disintegrating, re-combining. Even accord- 
ing to the texts apparently oldest, much of the tribal 
territory appears to have been permanently alienated 
to sub-tribes, families, or dependent chiefs ; and the 
glosses and commentaries show that, before they 
were written, this process had gone very far indeed. 
Whatever, again, may have been the original dignity 
and authority of the Chief, they are plainly growing, 
not merely through the introduction of alien prin- 
ciples and ideas, but from natural causes, more or 
less operative all over Europe. The general charac- 



130 GROWING POWER OF CHIEF. lect. v. 

ter of these causes is very much the same as in the 
Germanic countries. The power of the Chief grows 
first through the process which is called elsewhere 
1 commendation, ' the process by which the free tribes- 
man becomes ' his man,' and remains in a state of de- 
pendence having various degrees. It farther grows 
from his increasing authority over the waste-lands of 
the tribal territory and from the servile or semi-ser- 
vile colonies he plants there ; and lastly, it augments 
from the material strength which he acquires through 
the numbers of his immediate retainers and asso- 
ciates, most of whom stand to him in more or less 
servile relations. But the Brehon law tells us much 
that is novel and surprising concerning the particular 
course of these changes and their nature in detail. 
It furnishes us with some wholly new ideas concern- 
ing the passage of society from inchoate to complete 
feudalism, and helps us to complete the account of it 
derived from Germanic sources. In this, as it seems to 
me, the greatest part of its interest consists. 

With the Chieftaincy of the Tribe the early his- 
tory of modern Aristocracy and modern Kingship 
begins. These two great institutions had, in fact, at 
first the same history, and the Western world long 
continued to bear the marks of their original identity. 
The Manor with its Tenemental lands held by the free 
tenants of the Lord, and with its Domain which was 
in immediate dependence on him, was the type of al] 



lect. v. ARISTOCRACY AND KINGSHIP. 131 

the feudal sovereignties in their complete form, whether 
the ruler acknowledged a superior above him or 
whether he at most admitted one in the Pope, or the 
Emperor, or God himself. In every County, or Duke- 
dom, or Kingdom there were great tenants holding 
directly of its head and on some sort of parity with 
him; and there was a Domain under his more im- 
mediate government and at his immediate disposal. 
There is no obscurer and more difficult subject than 
the origin of the class whose power was the keystone 
of all these political and proprietary constructions, 
and none on which the scantiest contributions to our 
knowledge are more welcome. 

There is one view of the original condition of 
privileged classes which, though held by learned men, 
has been a good deal weakened of late by German 
research, and seems to me still farther shaken by 
portions of the Brebon law. This is the impression 
that they always constituted, as they practically do 
now, a distinct class or section of the community, each 
member of the class standing in a closer relation to 
the other members than to the rest of the national 
or tribal society to which all belong. It cannot be 
doubted that the earliest modern aristocracies have as 
a fact, when they are first discerned, this particular 
aspect. Mr. Freeman (' Norman Conquest/ i. 88) 
says that the ' difference between eorl and ceorl is a 
primary fact from which we start.' Tacitus plainly 



132 ORIGIN OF NOBILITY. lect. v. 

distinguished the noble from the non-noble freeman 
in the Germanic societies which he observed; and 
Caasar, as I stated in another Lecture, divides all the 
Continental Celtic tribes into the Equites and the 
Plebs. We can understand that a spectator looking 
at a set of tribal communities from the outside wovJd 
naturally class together all men visibly exalted above 
the rest ; but nevertheless this is not quite the ap- 
pearance which early Germanic society wears in the 
eyes of enquirers who follow the method of Yon 
Maurer and Landau. Each Chief or Lord appears to 
them to have been noble less with reference to other 
noblemen than with reference to the other free tribes- 
men comprised in the same group with himself. 
Nobility has many diverse origins ; but its chief 
source seems to have been the respect of co-villagers 
or assemblages of kinsmen for the line of descent in 
which the purest blood of each little society was be- 
lieved to be preserved. Similarly, the Brehon law 
suggests that the Irish Chiefs were not the class by 
themselves which the corresponding order among the 
Continental Celts appeared to Caesar to be, but were 
necessarily the heads of separate groups composed of 
their kindred or of their vassals. ' Every chief/ says 
the text which I quoted before, ' rules over his land, 
whether it be great or whether it be small.' And 
while the Irish law describes the way (as I shall 
point out) in which a common freeman can become a 



LECi. v. ORIGIN OF NOBILITY. 133 

chief, it also shows that the position to which he 
attains is the presidency of a group of dependants. 
Nevertheless the persons thus elevated undoubtedly 
tend to become, from various causes, a class by them- 
selves and a special section of the general community; 
and it is very probable that the tendency was at work 
from the earliest times. It is farther to be remarked 
that some aristocracies were really a section of the 
community from the very first. This structure of 
society is produced where one entire tribal group 
conquers or imposes its supremacy upon other tribal 
groups also remaining entire, or where an original 
body of tribesmen, villagers, or citizens, gradually 
gathers round itself a miscellaneous assemblage of 
protected dependants. There are many known in- 
stances of both processes, and the particular relation 
of tribal groups which the former implies was certainly 
not unknown to the Celtic societies. Amons: the 
Scottish Highlanders some entire septs or clans are 
stated to have been enslaved to others; and on the very 
threshold of Irish history we meet with a distinction 
between free and rent-paying tribes which may possibly 
imply the same kind of superiority and subordination. 
The circumstance of greatest novelty in the posi- 
tion of the Chief which the Brehon law appears to me 
to bring out is this : Whatever else a Chief is, he is 
before all things a rich man ; not, however, rich, as 
popular associations would lead us to anticipate, in 



134 HELLENIC AND TEUTONIC CHIEFS. lect. v. 

land, but in live stock — in flocks and _:erds, in sheep, 
and before all things in oxen. Here let me interpose 
the remark, that the opposition commonly set up be- 
tween birth and wealth, and particularly wealth other 
than landed property, is entirely modern. In French 
literature, so far as my knowledge extends, it first 
appears when the riches of the financial officers of the 
French monarchy — the Superintendents and Farmers- 
General — begin to attract attention. With us it seems 
to be exclusively the result of the great extension 
and productiveness of industrial undertakings on the 
largest scale. But the heroes of the Homeric poems 
are not only valiant but wealthy (Odyss. xiv. 96-106 ) ; 
the warriors of the Nibelungen-Lied are not only noble 
but rich. In the later Greek literature we find pride 
of birth identified with pride in seven wealthy ancestors 
in succession, iirra ttolttttoi ttXovctlol ; and you are well 
aware how rapidly and completely the aristocracy 
of wealth assimilated itself in the Roman State to 
the aristocracy of blood. Passing to the Irish Chief 
we find the tract called the ' Cain-Aigillne ? laying 
down (p. 279) that ' the head of every tribe should be 
the man of the tribe who is the most experienced, the 
most noble, the most wealthy, the most learned, the 
most truly popular, the most powerful to oppose, the 
most steadfast to sue for profits and to be sued for 
losses. 1 There are many other passages to the same 
effect; and on closely examining the system (as I pro- 



lect. v. JSOBILITI AND WEALTH. 135 

pose to do ] resently) we can perceive that personal 
wealth was the principal condition of the Chief's 
maintaining his position and authority. 

But while the Brehon laws suggest that the pos- 
session of personal wealth is a condition of the main- 
tenance of chieftainship, they show with much dis- 
tinctness that through the acquisition of such wealth 
the road was always open to chieftainship. We are 
not altogether without knowledge that in some Euro- 
pean societies the humble freeman might be raised by 
wealth to the position which afterwards became mo 
dern nobility. One fact, among the very few which 
are tolerably well ascertained respecting the specific 
origin of particular modern aristocracies is, that a por- 
tion of the Danish nobility were originally peasants ; 
and there are in the early English laws some traces 
of a process by which a Ceorl might become a Thane. 
These might be facts standing by themselves, and 
undoubtedly there is strong reason to suspect that 
the commencements of aristocracy were multifold; 
but the Brehon tracts point out in several places, 
with legal minuteness, the mode in which a peasant 
freeman in ancient Ireland could become a chief. 
There are few personages of greater interest spoken 
of in these laws than the Bo- Aire, literally the ' cow- 
nobleman.' He is, to begin with, simply a peasant 
who has grown rich in cattle, probably through 
obtaining the use of large portions of tribe-land. 



138 THE BO-AIRE. lect. y 

The true nobles, or Aires — a word striking from its 
consonance with, words of similar meaning in the 
Teutonic languages — are divided, though we can 
scarcely believe the classification to correspond with 
an universal fact, into seven grades. Each grade is 
distinguished from the others by the amount of 
wealth possessed by the Chief belonging to it, by the 
weight attached to his evidence, by his power of 
binding his tribe by contracts (literally of ' knotting '), 
by the dues which he receives in kind from his vassals 
according to a system to be presently described, and 
by his Honor-Price, or special damages incurred by 
injuring him. At the bottom of the scale is the 
chief or noble called the Aire-desa ; and the Brehon 
law provides that when the Bo -Aire has acquired 
twice the wealth of an Aire-desa, and has held it for 
a certain number of generations, he becomes an Aire- 
desa himself. The advantage secured to wealth does 
not, you see, exclude respect for birth, but works 
into it. ' He is an inferior chief,' says the c Senchus 
Mor,' ' whose father wns not a chief; ' and there are 
many other strong assertions of the reverence due 
to inherited rank. The primary view of chieftainship 
is evidently that it springs from purity or dignity of 
blood, but noble birth is regarded as naturally associ- 
ated with wealth, and he who becomes rich gradually 
climbs to a position indistinguishable from that which 
he would have occupied if he had been nobly born. 



laser, v. POPULAR THEORY OF NOBILITY. 187 

What is thus new in the system is the clear account 
of nobility as a status, having its origin in the or- 
ganic structure of ancient society, but nevertheless 
in practice having perpetually fresh beginnings. 

The enormous importance which belongs to 
wealth and specially to wealth in cattle, in the early 
Aryan society reflected by the Brehon tracts, helps, 
I think, to clear up one great difficulty which meets 
us on the threshold of an enquiry into the origin oi 
aristocracies. I suppose that the popular theory on 
the subject of the privileged class in modern commu- 
nities is that it was originally indebted for its status, 
if not for its power or influence, to kingly favour. 
An Englishman once questioned the Emperor Paul 
of Russia on the position of the Russian nobility. 
; The only man who is noble in my dominions,' said 
the Czar, i is the man to whom I speak, for the time 
that I am speaking to him.' I merely take th^se 
words as the strongest possible statement of the view 
to which I am referring ; but they were used by a 
monarch with a disturbed brain, whose authority had 
contracted something of an Oriental character from 
its long subordination to Tartar power, and they were 
never absolutely true even of Russia. x\mong our- 
selves, however, the favourite assumption seems 
certainly to be, however slight may be. the practical 
consequences we draw from it, that all aristocratic 
privilege had its origin in kingly grace; and this 



138 NOBILITY AND THE KING. lect. y. 

appears, on the whole, to be the theory of English 
law. But the institutions of many parts of the Con- 
tinent long retained the traces of a different set of 
ideas, and these were found where kingly power was 
actually much greater than in England. The French 
Noblesse, before the Revolution, would as a body 
have resented the assertion that they were a creation 
of the King, and the Kings of France more than once 
admitted that they were only the most exalted mem- 
bers of a class to which their own nobility belonged. 
Kings have everywhere nowadays, and in many 
countries have had for centuries, a monopoly of the 
power of ennobling. This road to nobility has been 
so long trodden, that men in general have almost for- 
gotten there ever was another route. Yet historical 
scholars have long known that nobility conferred by 
royal grant was, in one sense, a modern institution, 
though they have not succeeded in completely ex- 
plaining how it came to supplant or dwarf the insti 
tution upon which it was engrafted. There seems to 
be no doubt that the first aristocracy springing from 
kingly favour consisted of the Comitatus, or Com- 
panions of the King. Although there is a good deal 
of evidence that the class was at first considered in 
some way servile, it gradually became in some coun- 
tries the type of all nobility. A ^ew tolerably familiar 
facts may serve to remind us how remarkable has 
been the fortune of the royal louseh^lds all over 



lect. y. THE ROYAL HCUSEHOLD. 139 

Western Europe. The Mayor of the Frankish Palace 
became King of the Franks. The Chamberlain of 
the Romano-German Emperors is now the German 
Emperor. The blood of the Steward of Scotland 
runs in the veins of the Kings of England. The 
Constables of France repeatedly shook or saved the 
French throne. Among ourselves the great officers 
of the Royal Council and Household still take prece- 
dence cither of all Peers or of all Peers of their own 
degree. Whence, then, came this great exaltation of 
the Mayor or Count of the Palace, of the great Sene- 
schal or Steward, of the High Chancellor, the Great 
Chamberlain, and High Constable — titles which, 
when they do not mark an office originally clerical, 
point to an occupation which must at first have been 
menial ? 

It seems certain that the Household sprang from 
very humble beginnings. Tacitus describes the 
companions of the Germanic chief as living with 
him in his house and supported by his bounty. 
Mr. Stubbs when stating (' Constitutional History/ 
p. 150) that l the gesiths of an (English) king were 
his guard and private council,' observes that the 
'free household servants of a ceorl are also in a 
certain sense his gesiths/ The Companions of the 
King appear also in the Irish legal literature, but they 
are not noble, and they are associated with the king's 
body-guard, whbh is essentially servile. The King of 



140 COMPANIONS OF THE KING OF ERIN. lect. v. 

Erin, though he never existed (strictly speaking), 
save for short intervals, yet always, so to speak, 
tended to exist, and the Crith Gablach, a Brehon 
tract of which a translation is given at the end of 
Sullivan's edition of O'Curry's Lectures, contains a 
picture of his palace and state. The edifice intended 
to be described is apparently very much the same as 
the great Icelandic house of which Mr. Dasent, in 
the 4 Story of Burnt Njal,' has attempted to give a 
drawing from the descriptions found in Norse litera- 
ture. In it the King feasts his guests, from kings 
and king's sons to a ghastly company of prisoners 
in fetters, the forfeited hostages of subject-chiefs or 
sub-septs who have broken their engagements. The 
Companions are there also, and they are stated to 
consist of his privileged tenantry and of his body- 
guard, which is composed of men whom he has 
delivered from death, jail, or servitude, never (a 
significant exception) of men whom he has saved on 
the battle-field. I am afraid that the picture of Irish 
society supplied by the Crith Gablach must through- 
out be regarded as to a great extent ideal or theo- 
retical; at any rate, there is much testimony fron 
English visitors to Ireland that many considerable 
Irish Chiefs were much more humbly furnished out 
than the King of Erin at Tara. Yet it is very likely 
that they all had Companions attending them, and 
I suspect that the obligation of maintaining a little 



lect. v. EETINTJE OF HIGHLAND CHIEFS. 141 

court had much to do with that strange privilege 
which in later times had a deplorable history, the 
right of the Chief to go with a following to the 
dwellings of his tenants and there be feasted at the 
tenant's expense. That even petty Chiefs of the 
Scottish Highlands had a retinue of the same cha- 
racter is known to all who can recall that immortal 
picture of Celtic society which for the first time 
brought it home to men who were nearly our con- 
temporaries that ancient Celtic life and manners had 
existed almost down to their days — the novel of 
4 Waverley.' 

It seems extremely probable that, in a particular 
stage of society, this personal service to the Chief or 
King was everywhere rendered in expectation of 
reward in the shape of a gift of land. The Com- 
panions of the Teutonic kings, in Continental Europe, 
shared largely in the Benefices — grants of Roman 
provincial land fully peopled and stocked. In ancient 
England the same class are believed to have been 
the largest grantees of public land next to the 
Church; and doubtless we have here part of the 
secret of the mysterious change by which a new 
nobility of Thanes, deriving dignity and authority 
from the King, absorbed the older nobility of Eorls. 
But we are a little apt to forget the plentifulness of 
land in countries lying beyond the northern and 
western limits of the Roman Empire, or just within 



142 CHEAPNESS OF LAND IN PRIMITIVE TIMES, lect. t. 

them. Mr. Thorold Rogers, writing of a period 
relatively much later, and founding his opinion on 
the extant evidence of returns from manor-lands, 
speaks of land as the ' cheapest commodity of the 
Middle Ages.' The practical difficulty was not to 
obtain land, but the instruments for making it pro- 
ductive ; and hence, in a society older relatively than 
any Teutonic society of which we have any distinct 
knowledge, that very society which the Brehon tracts 
enable us to understand, it may very well have 
been that the object of suit at court was much less to 
obtain land than to obtain cattle. The Chief, as I 
have already said, was before all things rich in flocks 
and herds. He was military leader, and a great part 
of his wealth must have been spoil of war, but in his 
civil capacity he multiplied his kine through his 
growing power of appropriating the waste for pasture, 
and through a system of dispersing his herds among 
the tribesmen, which will be described in the next 
Lecture. The Companion who followed him to the 
foray, or was ready to do so, cannot but have been 
enriched by his bounty; and thus, if already noble, he 
became greater; if he was not noble, the way to 
nobility lay through wealth. The passage which I 
am about to read to you may serve to illustrate what 
probably took place, though there is nothing except 
common humanity to connect the tribes of whose 
customs it speaks with the primitive Teutons and 



lect. v. KAFIE CHIEFS. 143 

Celts. The Eev. H. Dugmore, in a most interesting 
volume, called a ' Compendium of Kafir Laws and 
Customs,' and published at the Wesleyan Missionary 
Press, Mount Coke, British Kafiraria, writes thus of 
much the most advanced of the South African native 
races, the Kafirs or Zulus (p. 27): 'As cattle con- 
stitute the sole wealth of the people, so they are 
their only medium of such transactions as involve 
exchange, payment, or reward. The retainers of a 
chief serve him for cattle; nor is it expected that he 
could maintain his influence, or indeed secure any 
number of followers, if unable to provide them with 
what at once constitutes their money, food, and 
clothing. He requires, then, a constant fund from 
which to satisfy his dependants; and the amount of 
the fund required may be judged of from the cha- 
racter of the demand made upon him. His retinue, 
court, or whatever it is to be called, consists of men 
from all parts of the tribe, the young, the clever, and 
the brave, who come to do court service for a time, 
that they may obtain cattle to furnish them with the 
means of procuring wives, arms, or other objects of 
desire. On obtaining these they return to their 
homes and give place to others. Thus the immediate 
retinue of a chief is continually changing, and con- 
stitutes a permanent drain on his resources.' Mr. 
Dugmore goes on to state that the sources of the 
chief's wealth are the inherited cattle of his father, 



144 CATTLE-STEALING. LECT. T. 

offerings made to him on the ceremony of his circum- 
cision, benevolences levied from his tribe, fines and 
confiscations, and the results of predatory excursions. 
The remarkable part played by kine in ancient 
Irish society will, I hope, be made more intelligible 
in the next Lecture. Meantime, let me observe that 
the two Celtic societies included in these islands 
which longest retained their ancient usages were both 
notoriously given to the plunder of cattle. Lord 
Macaulay, in speaking of Irish cattle -stealing, some- 
times, I must own, seems to me to express himself as 
if he thought the practice attributable to some native 
vice of Irish character ; but no doubt it was what Mr. 
Tylor has taught us to call a survival, an ancient 
and inveterate habit, which in this case continued 
through the misfortune which denied to Ireland the 
great condition of modern legal ideas, a strong 
central government. The very same practice, among 
the Celts of the Scottish Highlands and the rude 
Germanic population of the Lowland Border, has 
almost been invested by one man's genius with the 
dignity of a virtue. Again, turning to ' Waverley,' I 
suppose there is no truer representative of the 
primitive Celtic chief than Donald Bean Lean, who 
drives the cattle of Tully Veolan, and employs a 
soothsayer to predict the number of beeves which are 
likely to come in his way. He is a far more genuine 
1 survival ' than Fergus Mclvor, who all but deserts 
his cause for a disappointment about an earldom. 



kect. v. THE STATUS OF THE COMPANIONS. 145 

It has been pointed out that the status of the 
King's Companions was at first in some way servile. 
Whenever legal expression has to be given to the 
relations of the Comitatus to the Teutonic kings, the 
portions of the Roman law selected are uniformly 
those which declare the semi servile relation of the 
Client or Freedman to his Patron. The Brehon law 
permits us to take the same view of the corresponding 
class in Celtic societies. Several texts indicate that 
a Chief of high degree is always expected to surround 
himself with unfree dependants ; and you will re- 
collect that the retinue of the King of Erin was to 
consist not only of free tribesmen but of a body- 
guard of men bound to him by servile obligations. 
So far as it goes, I quite agree with the explanation 
which Mr. Freeman has given of the original connec- 
tion between servile status and that nobility with 
which the primitive nobility of birth has become 
mixed up and confounded. c The lowly clientage/ 
he says, i of the Roman Patrician and the noble fol- 
lowing of the Hellenic and Teutonic leader may 
really come from the same source, and may both 
alike be parts of the same primeval heritage.' 
(' Comparative Politics,' p. 261.) But perhaps we 
may permit ourselves to go a step beyond this ac- 
count. The Comitatus or Companions of the Chief, 
even when they were freemen, were not necessarily 
or ordinarily his near kindred. Their dependence on 

L 



146 SERVILE POSITION OF COMPANIONS. lect. v. 

him, carrying with it friendship and affection, would 
in modern societies place them in a position well 
understood, and on something like an equality with 
him; but in the beginning of things one man was 
always the kinsman, the slave, or the enemy of an- 
other, and mere friendship and affection would, by 
themselves, create no tie between man and man. In 
order that they might have any reality, they would 
have to be considered as establishing one of the rela- 
tions known to that stage of thought. Between 
equals this would be assumed or fictitious kinship. 
But between the Chief who embodied purity of tribal 
descent and his associates, it would have more or less 
to follow the pattern of the slave's dependence on his 
master, and, where the Companion was not actually 
the Chief's slave, the bond which connected them 
would very probably be adapted to the more honour- 
able model furnished by the relation between ex- 
slave and ex-master. 



lest, vi. OXEN IN PEIMITIVE TIMES. U7 



LECTURE VI. 

THE CHIEF AND THE LAND. 

The Brehon law-tracts strongly suggest that, among 
the things which we in modern times have most for- 
gotten, is the importance of horned cattle, not merely 
in the infancy of society, but at a period when it had 
made some considerable advance towards maturity. 
It is scarcely possible to turn over a page without 
finding some allusion to beeves, to bulls, cows, heifers, 
and calves. Horses appear, sheep, swine, and dogs ; 
and bees, the producers of the greatest of primitive 
luxuries, have a place assigned to them as an article 
of property which has something corresponding to it 
in old Roman law. But the animals much the most 
frequently mentioned are kine. There are some few 
facts both of etymology and of legal classification 
which point to the former importance of oxen. 
Capitate — kine reckoned by the head — cattle — has 
given birth to one of the most famous terms of 
law and to one of the most famous terms of poli- 
tical economy, ChattexS and Capital. Pecunia was 

l 2 



148 OXEN IN PRIMITIVE TIMES. lect. vi. 

probably the word for money which was employed 
by the largest part of mankind for the longest time 
together. But oxen, though they have furnished a 
modern synonym for personal property, were not, I 
need scarcely say, classed in the lower order of com 
modities in all ancient systems of law. The primi 
tive Roman law placed them in the highest class, and 
joined them with land and slaves as items of the Res 
MancipL As in several other instances, the legal 
dignity of this description of property among the 
Romans appears to answer to its religious dignity 
among the Hindoos. Kine, which the most ancient 
Sanscrit literature shows to have been eaten as food, 
Lecame at some unknown period sacred, and their 
flesh forbidden ; and ultimately two of the chief 
4 Things which required a Mancipation ' at Rome, 
oxen and landed property, had their counterpart in 
the sacred bull of Siva and the sacred land of India. 
The subject has possibly been obscured by an 
impression that horned cattle were only of pre- 
eminent importance to mankind in that pastoral 
stage of society which has been the theme of so much 
not altogether profitable speculation. The actual 
evidence seems to show that their greatest value was 
obtained when groups of men settled on spaces of 
land and betook themselves to the cultivation of 
food-grains. It is very possible that kine were at 
first exclusively valued for their flesh and milk, but 



LECT. vi. KINE AS A MEASUEE OF VALUE. 149 

it is clear that in very early times a distinct special 
importance belonged to them as the instrument or 
medium of exchange. In the Homeric literature, they 
are certainly a measure of value ; there seems no reason 
to doubt the traditional story that the earliest: coined 
money known at Rome was stamped with the figure 
of an ox; and at all events the connection between 
'pecus' and 'pecunia' is unmistakeable. Part, but 
by no means all, the prominence given by the Brehon 
lawyers to horned cattle arises certainly from their 
usefulness in exchange. Throughout the Brehon 
tracts fines, dues, rents, and returns are calculated 
in live-stock, not exclusively in kine, but nearly so. 
Two standards of value are constantly referred to, 
• sed' and 'cumhal.' ' Cumhal ' is said to have origi- 
nally meant a female slave, but ' scd' is plainly used 
for an amount or quantity of live stock, probably to 
some small extent variable. The next stage, however, 
in the history of cattle is that at which their service to 
mankind is greatest. They are now valued chiefly, 
in some communities exclusively, for their use in 
tillage, for their labour and their manure. Their 
place has been taken very generally in Western 
Europe by horses as beasts of plough, but the change 
was even there both gradual and comparatively mo- 
dern; and there are still large portions of the world 
where the horse is exclusively employed, as it seems 
everywhere to have been at one time, for war, for 



150 CATTLE AND SLAVERY. lect. vi 

pleasure, or the chase. Oxen were thus almost the 
sole representatives of what a Political Economist 
would now call Capital applied to land. I *hink it 
probable that the economical causes 'which led to 
the disuse of oxen as a medium of exchange led also 
to the change in their legal position which we find to 
have taken place at Rome and in India. The sancti- 
fication of the ox among the Hindoos, rendering his 
flesh unlawful as food, must certainly have been con- 
nected with the desire to preserve him for tillage, 
and his elevation to a place among the Res Mancipi 
may well have been supposed to have the same ten- 
dency, since it made his alienation extremely difficult, 
and must have greatly embarrassed his employment in 
exchange. At this point the history of horned cattle 
becomes unhappily mixed up with that of large por- 
tions of mankind. The same causes which we per- 
ceive altering the position of the ox and turning hirc 
into an animal partially adscriptus glebce, undoubtedly 
produced also a great extension of slavery. The 
plentifulness of land, even in what are considered old 
countries, down to comparatively recent times, and 
the scarcity of capital even in its rudest forms, seem 
to me to be placed in the clearest light by Mr. Thorold 
Rogers's deeply instructive volumes on Agriculture 
and Prices during the Middle Ages ; and much in his- 
tory which has been only partially intelligible is ex- 
plained by them. The enormous importation of slaves 



/ 
lect. vi. THE IRISH SYSTEM OF GIVING STOCK. 151 



into the central territories of the Roman Common- 
wealth, and the wholesale degradation of the free cul- 
tivating communities of Western Europe into assem- 
blages of villeins, seem to be expedients of the same 
nature as restrictions on the alienation of the ox and on 
its consumption for food, and to have been alike sug- 
gested by the same imperious necessity of procuring 
and preserving instruments for the cultivation of land. 
The importance of horned cattle to men in a 
particular state of society must, as it seems to me, 
be carefully borne in mind if we are to understand 
one of the most remarkable parts of the ancient Irish 
law which relates 10 the practice of 4 giving stock.' 
I stated before that, though I did not draw the 
same inferences from the fact, I agreed with the 
writers who think that the land- system of ancient 
Ireland was theoretically based on the division of the 
tribe-lands among the free tribesmen. But I also 
said that in my opinion the true difficulty of those 
days was not to obtain land but to obtain the means 
of cultivating it. The want of capital, taken in its 
original sense, was the necessity which pressed on the 
small holder of land and reduced him occasionally to 
the sorest straits. On the other hand, the great 
owners of cattle were the various Chiefs, whose pri- 
mitive superiority to the other tribesmen in this 
respect was probably owing to their natural functions 
as military leaders of the tribe. The Brehon law 



152 ORIGIN OF VASSALAGE IN IRELAOT). lect, vi. 

suggests to me that the Chiefs too were pressed b) a 
difficulty of their own, that of finding sufficient pas- 
turage for their herds. Doubtless their power over 
the waste -lands of the particular group over which 
they happened to preside was always growing, but 
the most fruitful portions of the tribal territory would 
probably be those which the free tribesmen occupied. 
The fact that the wealth of the Chiefs in cattle was 
out of proportion to their power of dealing with the 
tribal lands, and the fact, that the tribesmen were 
every now and then severely pressed by the necessity 
of procuring the means of tillage, appear to me to 
supply the best explanation of the system of giving 
and receiving stock, to which two sub-tracts of the 
Senchus Mor are devoted, the Cain-Saerrath and the 
Cain-Aigillne, the Law of Saer-stock tenure and the 
Law of Daer-stock tenure. 

The interest of these two compendia is very great. 
In the first place, they go far to show us how it was 
that the power of the tribal Chief increased, not merely 
over his servile dependants, but over the free tribes- 
men among whom he had been at first only primus 
inter pares. In the next, they give us, from the 
authentic records of the ancient usages of one par- 
ticular society, a perfectly novel example of a pro- 
ceeding by which feudal vassalage was created. I 
need scarcely dwell on the historical importance of 
the various agencies by which the relation of Lord 



lect. yt. ROMAN AND FEUDAL SOCIETY. 153 

and Vassal was first established. It was by them 
that the Western Europe of the Roman despotism 
was changed into the Western Europe of the feudal 
sovereignties. Nothing can be more strikingly un- 
like in external aspect than the states of society which 
are discerned on either side of the stormy interval 
filled with the movement and subsidence of the bar- 
barian invasions. Just before it is reached, we see a 
large part of mankind arranged, so to speak, on one 
vast level surface dominated in every part by the 
overshadowing authority of the Roman Emperor. On 
this they lie as so many equal units, connected to- 
gether by no institutions which are not assumed to 
be the creation of positive Roman law ; and between 
them and their sovereign there is nothing but a host 
of functionaries who are his servants. When feudal 
Europe has been constituted, all this is changed. 
Everybody has become the subordinate of somebody 
else higher than himself and yet exalted above him 
by no great distance. If I may again employ an 
image used by me before, society has taken the form 
of a pyramid or cone. The great multitude of culti- 
vators is at its base ; and then it mounts up through 
ever-narrowing ^ections till it approaches an apex, 
not always visible, but always supposed to be dis- 
coverable, in the Emperor, or the Pope, or God 
Almighty. There is strong reason to believe that 
neither picture contains all the actual detail, and 



154 BENEFICES AND COMMENDATION. lect. yt 

that neither the theory of the Roman lawyers on one 
side nor the theory nf the feudal lawyers on the other 
accounts for or takes notice of a number of customs 
and institutions which had a practical existence in 
their day. Either theory was, however, founded upon 
the most striking facts of the epoch at which it was 
framed. 

We know something, though not very much, of 
the formal instrumentalities by which the later set of 
facts became so extremely dissimilar to the earlier. 
Mr. Stubbs ('Constitutional History,' i. 252) has 
thus summarised the most modern views on the sub- 
ject. Feudalism ' had grown up from two great 
sources, the Benefice and the practice of Commen- 
dation. The beneficiary system originated partly in 
gifts of land made by the kings out of their own 
estates to their kinsmen and servants, with a special 
undertaking to be faithful, partly in the surrender by 
landowners of their estates to churches or powerful 
men, to be received back again and held by them as 
tenants for rent or service. By the latter arrange- 
ment the weaker man obtained the protection of the 
stronger, and he who felt himself insecure placed his 
title under the defence of the Church. By the prac- 
tice of Commendation, on the other hand, the inferior 
put himself under the personal care of a lord, but 
without altering his title or divesting himself of his 
right to his estate ; he became a vassal and did 



jtECT. vi. COMMENDATION. 155 

homage/ Commendation, in particular, went on all 
over Western Europe with singular universality of 
operation and singular uniformity of result, and it 
helped to transform the ancient structure of Teutonic 
society no less than the institutions of the Roman 
Provincials. Yet there is considerable mystery about 
men's motives for resorting to so onerous a proceed- 
ing, and the statements of nearly all writers on the 
subject are general and chiefly conjectural. Perhaps 
the most precise assertion which we have been hitherto 
able to hazard as to the reasons of so large a part of 
the world for voluntarily placing themselves in a 
condition of personal subordination is, that they must 
have been connected with the system of civil and 
criminal responsibility which prevailed in those times. 
Families — real or artificial — natural or formed by 
agreement — were responsible for the offences and even 
for the civil liabilities of their members ; but corporate 
responsibility must have been replaced, conveniently 
for all persons concerned, by the responsibility of a 
single lord, who could prevent injury and pay com- 
pensation for it, and whose testimony, in compurga- 
tion and other legal proceedings, had a weight often 
assigned to it exceeding that of several inferior per- 
sons combined. More generally, but with at least 
equal plausibility, we can lay down that -the general 
disorder of the world had much to do with the 
growth of the new institutions ; and that a little 



156 CELTIC ORIGIN OF COMMENDATION. lect. 71 

society compactly united under a feudal lord was 
greatly stronger for defence or attack than any body 
of kinsmen or co- villagers and than any assemblage 
of voluntary confederates. It would be absurd, 
however, to suppose that we have materials for a 
confident opinion as to men's motives for submitting 
themselves to a change which was probably recom- 
mended to them or forced on them by very various 
circumstances in different countries and in relatively 
different stages of society. 

I do not wish to generalise unduly from the new 
information furnished by the Brehon law, but there 
has long been a suspicion (I cannot call it more)' 
among learned men that Celtic usages would throw 
some light on Commendation, and, at any rate, amid 
the dearth of our materials, any addition to them 
from an authentic source is of value. Let me again 
state the impression I have formed of the ancient 
Irish land-system, in the stage at which it is revealed 
to us by the Brehon tracts. The land of the tribe, 
whether cultivated or waste, belongs to the tribe, and 
this is true, whether the tribe be a joint-family of 
kinsmen or a larger and more artificial assemblage. 
Such theoretically is the principle, if the traditional 
view of the primitive state of things may be called a 
theory. But much of the territory of the larger 
tribes has been permanently assigned to Chiefly fami- 
lies or to smaller sub-divisions of tribesmen, and the 



lect. Yl. THE CHIEFS AND STOCK. 157 

land of the smaller sub-divisions tends ever to become 
divided among their members, subject to certain re- 
served rights of the collective brotherhood. Every 
considerable tribe, and almost every smaller body of 
men contained in it, is under a Chief, whether he be 
one of the many tribal rulers whom the Irish records 
call Kings, or whether he be one of those heads of 
joint-families whom the Anglo- Irish lawyers at a 
later date called the Capita Cognationum. But he is 
not owner of the tribal land. His own land he may 
have, consisting of private estate or of official domain, 
or of both, and over the general tribal land he has a 
general administrative authority, which is ever grow- 
ing greater over that portion of it which is unappro- 
priated waste. He is meanwhile the military leader 
of his tribesmen, and, probably in that capacity, he 
has acquired great wealth in cattle. It has somehow 
become of great importance to him to place out por- 
tions of his herds among the tribesmen, and they on 
their part occasionally iind themselves through stress 
of circumstance in pressing need of cattle for employ- 
ment in tillage. Thus the Chiefs appear in the Brehon 
law as perpetually ' giving stock/ and the tribesmen 
as receiving it. The remarkable thing is, that out of 
this practice grew, not only the familiar incidents of 
ownership, such as the right to rent and the liability 
to pay it, together with some other incidents less 
pleasantly familiar to the student of Irish history, 



158 SAER AND DAER TENANTS. lect. ti 

but, above and besides these, nearly all the well- 
known incidents of feudal tenure. It is by taking 
stock that the free Irish tribesman becomes the Ceile 
or Kyle, the vassal or man of his Chief, owing him 
not only rent but service and homage. The exact 
effects of 'commendation ' are thus produced, and the 
interesting circumstance is that they are produced from 
a simple and intelligible motive. The transaction be- 
tween Chief and Vassal is very burdensome to the 
latter, but the necessity which leads to it is pressing, 
and the force of this necessity would be greater the 
more primitive the society in which it arose, and the 
more recent its settlement on its lands. All this is 
especially instructive, because there is no reason 
whatever to suppose that Beneficiary grants and 
Commendation arose suddenly in the world at the 
disruption of the Roman Empire. They were pro- 
bably, in some form or other, deeply seated among 
the rudimentary usages of all Aryan societies. 

The new position which the tribesman assumed 
through accepting stock from a Chief varied according 
to the quantity of stock he received. If he took much 
stock he sank to a much lower status than if he had 
taken little. On this difference in the quantity ac- 
cepted there turns the difference between the two 
great classes of Irish tenantry, the Saer and Daer 
tenants, between whose status and that of the 
free and higher base tenants of an English manor 



lect. 71. SAER-STOCK TENANCY. 159 

there is a resemblance not to be mistaken, The 
Saer-stock tenant, distinguished by the limited 
amount of stock which he received from the Chief, 
remained a freeman and retained his tribal rights in 
their integrity. The normal period of his tenancy 
was seven years, and at the end of it he became en- 
titled to the cattle which had been in his possession. 
Meantime he had the advantage of employing them 
in tillage, and the Chief on his part received the 
4 growth and increase and milk,' the first two words 
implying the young and the manure. So far there is 
nothing very remarkable in the arrangement, but it 
is expressly laid down that besides this it enti-led 
the Chief to receive homage and manual labour ; 
manual labour is explained to mean the service of the 
vassal in reaping the Chief's harvest and in assisting 
to build his castle or fort, and it is stated that, in lieu 
of manual labour, the vassal might be required to 
follow his Chief to the wars. Any large addition to 
the stock deposited with the Saer-stock tenant, or an 
unusual quantity accepted in the first instance by the 
tribesman, created the relation between vassal and 
chief called Daer-stock tenancy. The Daer-stock 
tenant had unquestionably parted with some portion 
of his freedom, and his duties are invariably referred 
to as very onerous. The stock given to him by the 
Chief consisted of two portions, of which one was pro- 
portionate to the rank of the recipient, the other to the 



160 DAEft-STOCK TENANCY. lect. vl 

rent in kind to which the tenant became liable. The 
technical standard of the first was the tenant's 'honor- 
price/ the fine or damage which was payable for in- 
juring him, and which in these ancient systems of 
law varies with the dignity of the person injured. 
The relation between the second portion of stock and 
the rent is elaborately defined in the Brehon law : 
1 The proportionate stock of a calf of the value of a 
sack with its accompaniments, and refections for three 
persons in the summer, and work for three days, is 
three "sain-haisc" heifers or their value' (' Cain- 
Aigillne,' p. 25); or, in other words, that the Chief 
may entitle himself to the calf, the refections, and 
the labour, he must deposit three heifers with the 
tenant. ' The proportionate stock of a *' dartadh " 
heifer with its accompaniment, is twelve " seds," ' 
explained to mean twelve ' sam-haisc ' heifers, or six 
cows. And so on in many places. The rent in kind, 
or food -rent, which was thus proportioned to the 
stock received, unquestionably developed in time into 
a rent payable in respect of the tenant's land; but it 
is certainly a curious and unexpected fact that the 
rent of the class which is believed to have embraced 
a very large part of the ancient Irish tenantry did 
not, in its earliest form, correspond in any way to the 
value of the tenant's land, but solely to the value of 
the Chief's property deposited with the tenant. But 
the most burdensome obligation imposed on the Daer- 



LECT. vi. THE RIGHT OF EEFECTIOtf. 161 

stock tenant is that which, in the quotation just made 
by me, is expressed by the word ' refections. 7 Beside 
the rent in kind and the feudal services, the Chief 
who had given stock was entitled to come, with a 
company of a certain number, and feast at the Daer- 
stock tenant's house, at particular periods, for a 
fixed number of days. This ' right of refection/ 
and liability to it, are among the most distinctive 
features of ancient Irish custom, and their origin is 
probably to be explained by the circumstance that 
the Irish Chief, though far more privileged than his 
tenants, was little better housed and almost as poorly 
furnished out, and could not have managed to con- 
sume at home the provisions to which his gifts of 
stock entitled him. But the practice had a most un- 
happy history. The Brehon law defines it and limits 
it narrowly on all sides ; but its inconvenience and 
its tendency to degenerate into an abuse are manifest, 
and from it are doubtless descended those oppressions 
which revolted such English observers of Ireland as 
Spenser and Davis, the ' coin and livery,' and the 
'cosherings' of the Irish Chiefs, which they denounce 
with such indignant emphasis. Perhaps there was 
no Irish usage which seemed to Englishmen so amply 
to justify that which as a whole I believe to have 
been a great mistake and a great wrong, the entira 
judicial or legislative abolition of Irish customs. The 
precautions by which the Brehon lawyers could fence 



162 DAER-STOCK AND METAYER TENANCY. lect. vl 

it in were not probably at any time very effectual, 
but, as I before stated, they did what they could ; 
and, moreover, as defined by them, the relation out 
of which Daer-stock tenancy and its peculiar obliga- 
tions arose was not perpetual. After food-rent and 
service had been rendered for seven years, if the Chief 
died, the tenant became entitled to the stock; while, 
on the other hand, if the tenant died, his heirs were 
partly, though not wholly, relieved from their obliga- 
tion. At the same time it is very probable that 
Daer-stock tenancy, which must have begun in the 
necessities of the tenant, was often from the same 
cause rendered practically permanent. 

It has frequently been conjectured that certain 
incidents of feudal tenure pointed back to some such 
system as the Brehon tracts describe to us. The 
Heriot of English Copyhold tenure, the c best beast ' 
taken by the Lord on the death of a base tenant, has 
been explained as an acknowledgment of the Lord's 
ownership ol the cattle with which he anciently 
stocked the land of his villeins, just as the Heriot of 
the military tenant is believed to have had its origin 
in a deposit of arms. Adam Smith recognised the 
great antiquity of the Metayer tenancy, still widely 
spread over the Continent, of which one variety was 
in his day found in Scotland under the name of 
* steelbow.' I am not at all surprised that, in one of 
the Prefaces to the official translation of the Brehon 



lbct. vi. RULES AS TO ACCEPTANCE OF STOCK. 163 

laws, a comparison should be instituted between this 
tenancy and the Saer and Daer-stock tenancy of an- 
cient Irish law. The outward resemblance is consi- 
derable, and the history of Metayer tenancy is so 
obscure that I certainly cannot undertake to say that 
practices answering to those I have described had 
not in some countries something to do with its primi- 
tive form. But the distinctions between the ancient 
and the modern tenancies are more important than the 
analogies. In Metayer tenancy a landlord supplies 
the land and stock, a tenant the labour only and the 
skill; but in Saer and Daer-stock tenancy the land 
belonged to the tenant. Again, the effect of the 
ancient Irish relation was to produce, not merely a 
contractual liability, but a status. The tenant had 
his social and tribal position distinctly altered by 
accepting stock. Further, the acceptance of stock 
was not always voluntary. A tribesman, in one 
stage of Irish custom at all events, was bound to 
receive stock from his own ' King/ or, in other words, 
from the Chief of his tribe in its largest extension; 
ind everywhere the Brehon laws seem to me to 
speak of the acceptance of stock as a hard necessity. 
Lastly, the Tribe to which the intending tenant 
belonged had in some cases a veto on his adoption of 
the new position, which was clearly regarded as a 
proceeding invasive of tribal rights and calculated to 
enfeeble them. In order to give the Tribe the oppor 



164 EFFECTS OF THE ACCEPTANCE OF STOCK, lect. VI. 

tunity of interposing whenever it had legal power to 
do so, the acceptance of stock had to be open and 
public, and the consequences of effecting it surrep- 
titiously are elaborately set forth by the law. It 
seems to me clear that it was discouraged by the 
current popular morality. One of those rules, 
frequent in ancient bodies of law, which are rather 
moral precepts than juridical provisions, declares that 
4 no man should leave a rent on his land which he 
did not find there.' 

The system which I have been describing must 
have contributed powerfully to dissolve the more 
ancient tribal and family organisation. If the Chief 
who gave and the Ceile who accepted stock belonged 
to the same Tribe, the effect of the transaction was to 
create a relation between them, not indeed altogether 
unlike that of tribal connection, but still materially 
different from it in many respects and much more to 
the advantage of the chieftain. But the superior 
from whom a man took stock was not always the 
Chief of his own Sept or Tribe. So far as the Brehon 
law can be said to show any favour to the new 
system of vassalage, it encourages it between natural 
chief and natural tribesman ; and, on the other hand, 
it puts difficulties in its way when there is an attempt 
to establish it between a tribesman and a strange 
Chief. But there seem to be abundant admissions 
that freemen did occasionally comme nd themselves in 



/ 
lect. tl THE KING OF ERIN AND THE EMPEROR. 165 



this way to superiors other than their Chiefs. Every 
nobleman, as I said before, is assumed to be as a rule 
rich in cattle, and it appears to have been an object 
with everyone to disperse his herds by the practice of 
giving stock. The enriched peasant who was on his 
way to be ennobled, the Bo-aire, seems to have had 
Ceiles who accepted stock from him, as well as had 
the nobles higher in degree. Accordingly, the new 
groups formed of the Lord and his Yassals — if we may 
somewhat antedate these last words — were sometimes 
wholly distinct from the old groups composed of the 
Chief and his Clan. Nor, again, was the new relation 
confined to Aires, or noblemen, and Ceiles, or free 
but non-noble tribesmen. The Bo-aire certainly, and 
apparently the higher Chiefs also, accepted stock on 
occasion from chieftains more exalted than them- 
selves ; and in the end to ' give stock ' came to mean 
the same thing as to assert feudal superiority, and to 
4 accept stock ' the same thing, which in the language 
of other societies was called 4 commendation.' It is 
strong evidence of the soundness of the conclusions 
reached of late years by historical scholars (and, 
among others, by Mr. Bryce), as to the deep and wide 
influence exercised by the Roman Empire, even in 
its later form, that (of course by a fiction) the Brehon 
law represents the King of Ireland as ' accepting 
stock ' from the Emperor. 4 When the King of Erin 
is without opposition' — that is, as the explanation 



166 THE GERMS OF FEUDALISM. lect. yl 

runs, when lie holds the ports of Dublin, Waterford, 
and Limerick, which were usually in the hands of the 
Danes — c he receives stock from the King of the Ro- 
mans ' (S. M., ii. 225). The commentary goes on to 
say that sometimes 4 it is by the successor of Patrick 
that the stock is given to the King of Erin ; ' and this 
remarkable passage seems to show that an Irish writer 
spoke of the successor of St. Patrick, where a writer 
of the same approximate period in England or on the 
European Continent would assuredly have spoken of 
the Pope. 

I hope it is unnecessary for me to insist on the 
interest which attaches to this part of the Brehon law. 
It has been not uncommon, upon the evidence fur- 
nished by the usages of the Scottish Highlanders, 
sharply to contrast Celtic tribal customs with feudal 
rules ; and doubtless between these customs and 
feudalism in its perfected state there are differences 
of the greatest importance. Yet, if the testimony of 
the Brehon tracts may be trusted, such differences 
arose, not from essential distinctions, but, in some 
measure at all events, from distinctions of degree in 
comparative social development. The germs of feu- 
dalism lay deep in the more ancient social forms, and 
were ready to assert their vitality even in a country 
like Ireland, which, after it was once Christianised, 
can have borrowed next to no institutions from its 
neighbours, cut off as it was from the Continent by 



tECT. yi. INDEBTEDNESS OF ANCIENT DEMOCRACIES. 16? 

distance, and from England by stubborn national 
repulsion. It is also worthy of observation that this 
natural growth of feudalism was not, as some eminent 
recent, writers have supposed, entirely distinct, from 
the process by which the authority of the Chief or 
Lord over the Tribe or Village was extended, but 
rather formed part of it. While the unappropriated 
waste lands were falling into his domain, the villagers 
or tribesmen were coming through natural agencies 
under his personal power. 

The Irish practice of ' giving stock ' seems to me 
also to connect itself with another set of phenomena 
which have generally been thought to belong to a 
very different stage of history. We obtain from the 
law-tracts a picture of an aristocracy of wealth in its 
most primitive form; and we see that the possession 
of this wealth gave the nobles an immense power over 
the non-noble freemen who had nothing but their 
land. Caesar seems to me to be clearly referring to 
the same state of relations in the Celtic sister society, 
when he speaks of the Gaulish chiefs, the Equites, 
having one principal soui"ce of their influence in the 
number of their debtors. (B. G. i. 4; B. G. vi. 13.) 
Now, you will remember how uniformly, when 
our knowledge of the ancient world commences, we 
find plebeian classes deeply indebted to aristocratic 
orders. At the beginning of Athenian history we 
find the Athenian commonalty the bondslaves through 



168 IMPORTANCE OF LAND ATO CAPITAL. lect. yi. 

debt of the Eupatrids ; at tlie beginning of Eoman 
history we find the Roman Commons in money bond- 
age to the Patricians. The fact has been accounted 
for in many ways, and it has been plausibly suggested 
that it was the occurrence of repeated bad seasons 
which placed the small farmers of the Attic and 
Roman territory at the mercy of wealthy nobles. 
But the explanation is imperfect unless we keep in 
mind the chief lesson of these Brehon tracts, and recol- 
lect that the relative importance of Land and Capital 
has been altering throughout history. The general 
proposition that Land is limited in quantity and is 
distinguished by this limitation from all other com- 
modities which are practically capable of indefinite 
multiplication, has always of course been abstractedly 
true ; but, like many other principles of Political 
Economy, its value depends on the circumstances to 
which it is applied. In very ancient times ( land was 
a drug, while capital was extremely perishable, added 
to with the greatest difficulty, and lodged in very few 
hands. The proportionate importance of the two 
requisites of cultivation changed very slowly, and it 
is only quite recently that in some countries it has 
been well-nigh reversed. The ownership of the 
instruments of tillage other than the land itself was 
thus, in early agricultural communities, a power of 
the first order, and, as it may be believed that a stock 
of the primitive capital larger than usual was very 



lect. tt. THE ERIC-FIIS~E. 169 

generally obtained by plunder, we can understand 
that these stocks were mostly in the hands of noble 
classes whose occupation was war, and who at all 
events had a monopoly of the profits of office. The 
advance of capital at usurious interest, and the helpless 
degradation of the borrowers, were the natural re- 
sults of such economical conditions. For the honour 
of the obscure and forgotten Brehon writers of the 
Cain-Saerrath and the Cain-Aigillne, let it not be 
forgotten that their undertaking was essentially the 
same as that which went far to immortalise one great 
Athenian legislator. By their precise and detailed 
statements of the proportion which is to be preserved 
between the stock which the Chief supplies and the 
returns which the tenant pays, they plainly intend 
to introduce certainty and equity into a naturally 
oppressive system. Solon, dealing with a state of 
society in which coined money had probably not long 
taken the place of something like the ' seds ' of 
the Brehon law, had no expedient open to him but 
the debasement of the currency and the cancellation 
of debts ; but he was attacking the same evil as the 
Brehon lawyers, and equally interfering with that 
freedom of contract which wears a very different 
aspect according to the condition of the society in 
which it prevails. 

The great part played in the Brehon law by Cattle 
as the oldest form of Capital ought further to leave 



170 THE ERIC-FINE. lect. tl 

no doubt of the original objects of the system of 
'eric' -fines, or pecuniary composition for violent crime. 
As I said before, no Irish institution was so strongly 
denounced by Englishmen as this, or with so great a 
show of righteous indignation. As members of a 
wealthy community, long accustomed to a strong 
government, they were revolted partly by its apparent 
inadequacy and partly the unjust impunity which it 
seemed to give to the rich man and to deny to the 
poor. Although the English system of criminal 
penalties which they sought to substitute for the 
Irish system of compositions would nowadays be 
described by an ordinary writer in pretty much as 
dark colours as those used by Spenser and Davis for 
the Irish institution, it is very possible that in the 
sixteenth century it would have been an advantage 
to Ireland to have the English procedure and the 
English punishments. There is much evidence that 
the usefulness of ' eric '-fines had died out, and that 
they unjustly profited the rich and powerful. Bat 
that only shows that the confusions of Ireland had 
kept alive beyond its time an institution which in 
the beginning had been a great step forwards from 
barbarism. If the modern writers who have spoken 
harshly of these pecuniary compositions had come 
upon a set of usages belonging to a society in which 
tribe was perpetually struggling with tribe, and in 
which life was held extraordinarily cheap, and had 



1,bct. vl ETYMOLOGY OF FEUD. 171 

found that, by this customary law, the sept or family 
to which the perpetrator of a crime belonged forfeited 
a considerable portion of its lands, I am not sure that 
they would not have regarded the institution as 
showing for the age an extremely strict police. But 
in the infancy of society a fine on the cultivating 
communities, of the kind afterwards called pecuniary, 
was a much severer punishment than the forfeiture of 
land. They had plenty of land within their domains, 
but very slight appliances for cultivating it ; and it 
was out of these last that compositions were paid. 
The system of course lost its meaning as the commu- 
nities broke up and as property became unequally 
divided. In its day, nevertheless, it had been a great 
achievement, and there are traces of it everywhere, 
even in Roman law, where, however, it is a mere 
survival. 

Before I quit the subject let me say something on 
the etymology of the famous word, Feodum, Feud, or 
Fief. The derivation from Emphyteusis is now alto- 
gether abandoned, and there is general, though not 
quite universal, agreement that Feodum is descended 
from one or other of the numerous family of old 
Teutonic terms which have their present representa- 
tive in the modern German vieh, ' cattle.' There is 
supposed to have been much the same transmutation 
of meaning which occurred with the analogous Latin 
word. Pecunia, allied to pecus, signified first money, 



172 SERVILE CLASSES ON TRIBAL TERRITORY, lect. tl 

and then property generally; the Roman lawyers, in 
fact, tell us that it is the most comprehensive term for 
all a man's property ; and in the same way 4 feodum ' 
is supposed to have come to mean c property/ from 
having originally meant l cattle.' The investigations 
we have been pursuing may perhaps, however, suggest 
that the connection of ' feodum ' with cattle is closer 
and more direct than this theory assumes. Dr. Sulli- 
van, I ought to add, assigns a different origin to 
1 feodum ' from any hitherto put forward (hit rod. 
p. ccxxvi.). He claims it as a Celtic word, and con- 
nects it with fuidhir, the name of a class of denizens 
on tribal territory whose status I am about to discuss. 
The territory of every Irish tribe appears to have 
had settled on it, besides the Saer and Daer CehYs, 
certain classes of persons ^vhose condition was much 
nearer to slavery than that of the free tribesman who, 
by accepting stock from the Chief, had sunk lowest 
from his original position in the tribal society. They 
are called by various names, Sencleithes, Bothachs, 
and Fuidhirs ; and the two last classes are again sub- 
divided, like the Ceiles, into Saer and Daer Bothachs 
and Saer and Daer Fuidhirs. There is evidence in 
the tracts, and especially in the unpublished tract 
called the ' Corus Fine,' that the servile dependants, 
like the freemen of the territory, had a family or 
tribal organisation ; and indeed all fragments of a 
society like that of ancient Ireland take more or kss 



leot. ti. THE FUIDHIR TENANTS. 173 

the shape of the prevailing model. The position of 
the classes, obscurely indicated in Domesday and 
other ancient English records as Cotarii and Bordarii, 
was probably very similar to that of the Sencieithes 
and Bothachs ; and in both cases it has been suspected 
that these servile orders had an origin distinct from 
that of the dominant race, and belonged to the older 
or aboriginal inhabitants of the country. Families or 
sub-tribes formed out of them were probably hewers 
of wood and drawers of water to the ruling tribe or 
its subdivisions. Others were certainly in a condition 
of special servitude to the Chief or dependence on 
him ; and these last were either engaged in culti- 
vating his immediate domain-land and herding his 
cattle, or were planted by him in separate settle- 
ments on the svaste land of the tribe. The rent or 
service which they paid to him for the use of this 
land was apparently determinable solely by the 
pleasure of the Chief. 

Much the most important, and much the most in- 
teresting of these classes from the historical point of 
view, was that just described as settled by the Chief 
on the unappropriated tribal lands. Indeed, it has 
been suggested that its fortunes are identical with 
those of the great bulk of the Irish people. It con- 
sisted of the Fuidhirs, the strangers or fugitives from 
other territories, men, in fact, who had broken the 
original tribal bond which gave them a place in the 



174 THE FUIDHIR TENANTS. lect. n. 

community, and who had to obtain another as best 
they might in a new tribe and a new place. The 
Brehon law shows by abundant evidence that the 
class must have been a numerous one. The deser- 
tion of their lands by families or portions of families 
is repeatedly spoken of. Under certain circumstances, 
indeed, the rupture of the tribal bond and the flight 
of those who break it are eventualities distinctly con- 
templated by the law. In the Brehon law, as in 
other ancient juridical systems, the corporate respon- 
sibility of tribes, sub-tribes, and families takes the 
place of that responsibility for crime, and even to 
some extent of civil obligation, which, under modern 
institutions, presses upon the individual. But the 
responsibility might be prevented from attaching 
by compelling or inducing a member of the group, 
habitually violent or vowed to revenge, to withdraw 
from its circle ; and the Book of Aicill gives the legal 
procedure which is to be observed in the expulsion, 
the tribe paying certain fines to the Chief and the 
Church and proclaiming the fugitive. Such provi- 
sions assume a certain order in the society to which 
they apply; yet we know as a fact that for many 
centuries it was violently disordered. The result was 
probably to fill the country with ' broken men/ and 
such men could only find a home and protection by 
becoming Fuidhir tenants. Everything, in short, 
which tended to disturb the Ireland of the Brehon 
laws tended to multiply this particular class. 



lect. vt. RENT PAID BY FUIDHIRS. 175 

Now, the Fuidhir tenant was exclusively a depen- 
dant of the Chief, and was through him alone con- 
nected with the Tribe. The responsibility for crime, 
which in the natural state of Irish society attached to 
the Family or Tribe, attached, in the case of the Fuid- 
hir, to the Chief, who in fact became to this class of 
tenants that which their original tribesmen or kindred 
had been. Moreover, the land which they cultivated 
in their place of refuge was not theirs but his*. They 
were the first ' tenants at will ' known to Ireland, 
and there is no doubt that they were always theo- 
retically rackrentable. The ' three rents.' says the 
Senchus Mor, are the ' rackrent from a person of a 
strange tribe, a fair rent from one of the tribe, and the 
stipulated rent which is paid equally by the tribe and 
the strange tribe.' The c person from a strange tribe ' 
is undoubtedly the Fuidhir ; and though the Irish 
expression translated ' rackrent ' cannot, of course, 
in the ancient state of relation between population 
and land, denote an extreme competition rent, it 
certainly indicates an extreme rent ; since in one of 
the glosses it is graphically compared to the milk of 
a cow which is compelled to give milk every month 
to the end of the year. At the same time there is 
no reason to suppose that, in the first instance, the 
Fuidhir tenants were oppressively treated by the 
Chiefs. The Chief had a strong interest in encouraging 
them ; c he brings in Fuidhirs,' says one of the tracts, 



176 AGRICULTURAL CLASSES IN ORISSA. lect. yi 

4 to increase his wealth. ' The interests really injured 
were those of the Tribe, which may have become 
stronger for defence or attack by the addition to the 
population of the territory, but which certainly suf- 
fered as a body of joint proprietors by the curtail- 
ment of the waste land available for pasture. The 
process before described by which the status of the 
tribesmen declined proportionately to the growth of 
the Chiefs' powers, must have been indirectly hastened 
in several ways by the introduction of Fuidhirs. 
Such indications of the course of change as the Bre- 
hon laws furnish are curiously in harmony with a 
passage from a work recently published, which, amid 
much other valuable matter, gives a most vivid pic- 
ture of agricultural life in the backward Indian pro- 
vince of Orissa. Mr. Hunter, the writer, is speaking 
of the relation of landlord and tenant ; but as the 
4 hereditary peasantry ' referred to have, as against 
their landlord, rights denned by law, they are not 
without analogy to the tribesmen of an ancient Irish 
territory. ' The migratory husbandman,' the Fuid- 
hir of modern India, ' not only lost his hereditary 
position in his own village, but he was an object of 
dislike and suspicion among the new community into 
which he thrust himself. For every accession of 
cultivators tended to better the position of the land- 
lord, and pro tanto to injure that of the (older) culti- 
vators. So long as the land on an estate continued 



/ 
lect. vi. IMPORTANCE OF FUIDHIK TENANCY, 177 

to be twice as much as the hereditary peasantry could 
till, the resident husbandmen were of too much im- 
portance to be bullied or squeezed into discontent. 
But once a large body of immigrant cultivators had 
grown up, this primitive check on the landlords' 
exactions was removed. The migratory tenants, 
therefore, not only lost their position in their old vil- 
lages, but they were harassed in their new settlements. 
Worse than all, they were to a certain extent con- 
founded with the landless low castes who, destitute 
of the local connections so keenly prized in rural 
society as the evidences of respectability, wandered 
about as hired labourers and temporary cultivators of 
surplus village lands.' (Hunter, ' Orissa,' i. 57, 58.) 

You will perhaps have divined the ground of the 
special attention which has been claimed for these 
Fuidhir tenants, and will be prepared to hear that 
their peculiar status has been supposed to have a 
bearing on those agrarian difficulties which have 
recurred with almost mysterious frequency in the 
history of Ireland. It is certainly a striking circum- 
stance that in the far distance of Irish tradition we 
come upon conflicts between rent-paying and rent- 
receiving tribes — that, at the first moment when our 
information respecting Ireland becomes full and 
trustworthy, our informants dwell with indignant 
emphasis on the ' racking ' of tenants by the Irish 
Chiefs — and that the relation of Irish landlord and 

N 



\ 78 IRISH AGRARIAN HISTORY. lect. yj; 

Irish tenant, after being recognised ever since the 
beginning of the century as a social difficulty of the 
first magnitude, finally became a political difficulty, 
which was settled only the other day. I do not say 
that there is not a thread of connection between 
these stages of Irish agrarian history, but there are 
two opposite errors into which we may be betrayed 
if we assume the thread to have been uniform 
throughout. In the first place, we may be tempted 
to antedate the influence of those economical laws 
which latterly had such powerful operation in Ireland 
until their energy was well-nigh spent through the 
consequences of the great famine of 1845-6. An 
overflowing population and a limited area of culti- 
vable land had much to do, and probably more than 
anything else to do, with the condition of Ireland 
during that period; but neither the one nor the other 
was a characteristic of the country at the end of the 
sixteenth century. Next, we may perhaps be inclined, 
as some writers of great merit seem to me to be, to 
post-date the social changes which caused so large a 
portion of the soil of Ireland to be placed under the 
uncontrolled Law of the Market, or, to adopt the 
ordinary phraseology, which multiplied 'tenants at 
will ' to an unusual extent. Doubtless, if we had to 
found an opinion as to these causes exclusively on 
ancient Irish law, and on modern English real 
property law, we should perhaps come to the conclu- 



user. Yl. TESTIMONY OF SPENSER AND DAVIS. 179 

sion that an archaic system, barely recognising abso- 
lute ownership, had been violently and unnaturally 
replaced by a system of far more modern stamp 
based upon absolute property in land. But, by the 
end of the sixteenth century, our evidence is that the 
Chiefs had already so much power over their tenants 
that any addition to it is scarcely conceivable. c The 
Lords of land,' says Edmund Spenser, writing not 
later than 1596, c do not there use to set out their land 
to farme, for tearme of years, to their tenants, but 
only from yeare to yeare, or during pleasure, neither 
indeed will the Irish tenant or husbandman otherwise 
take his land than so long as he list himselfe. The 
reason thereof in the tenant is, for that the landlords 
there use most shamefully to racke their tenants, 
laying upon them coin and livery at pleasure, and 
exacting of them besides his covenants what he 
pleaseth. So that the poore husbandman either dare 
not binde himselfe to him for longer tearme, or 
thinketh, by his continuall liberty of change, to keepe 
his landlord the rather in awe from wronging of him. 
And the reason why the landlord will no longer 
covenant with him is, for that he dayly looketh after 
change and alteration, and hovereth in expectation of 
new worlds.' Sir John Davis, writing rather before 
1713, used still stronger language: l The Lord is an 
absolute Tyrant and the Tennant a very slave and 
villain, and in one respect more miserable than Bond 

w 2 



180 EXPLANATIONS OF ENGLISH TESTIMONY, lbct. vi, 

Slaves. For commonly the Bond Slave is fed by his 
Lord, but here the Lord is fed by his Bond Slave/ 

There is very little in common between the 
miserable position of the Irish tenant here described 
and the footing of even the baser sort of Ceiles, or 
villeins, who had taken stock from the Chief. If the 
Brehon law is to be trusted, the Daer Ceile was to be 
commiserated, rather because he had derogated from 
his rights as a free tribesman of the same blood with 
the Chief, than because he had exposed himself to un- 
bridled oppression. Besides paying dues more of the 
nature of modern rent, he certainly stood under that 
unfortunate liability of supplying periodical refection 
for his Chief and his followers. But not only was the 
amount of his dues settled by the law, but the very 
size of the joints and the quality of the ale with which 
he regaled his Chief were minutely and expressly 
regulated. And, if one provision of the law is clearer 
than another, it is that the normal period of the 
relation of tenancy or vassalage was not one year, but 
seven years. How, then, are we to explain this dis- 
crepancy? Is the explanation that the Brehon theory 
never in reality quite corresponded with the facts? 
It may be so to some extent, but the careful student 
of the Brehon tracts will be inclined to think that 
the general bias of their writers was rather towards 
exaggeration of the privileges of Chiefs than towards 
overstatement of the immunities of tribesmen. Is it. 



/ 
LBCT. yi. EXPLANATIONS OF ENGLISH TESTIMONY. 181 



on the other hand, likely that, as some patriotic 
Irishmen have asserted, Spenser and Davis were 
under the influence of English prejudice, and grossly- 
misrepresented the facts of Irish life in their day? 
Plenty of prejudice of a certain kind is disclosed by 
their writings, and I doubt not that they were capable 
of occasionally misunderstanding what they saw. 
Nothing, however, which they have written suggests 
that they were likely \vilfully to misdescribe facts 
open to their observation. I can quite conceive that 
some things in the relations of the Chiefs and tenants 
escaped them, possibly a good deal of freely-given 
loyalty on one side, and of kindliness and good- 
humoured joviality on the other. But that the Irish 
Chief had in their day the power or right which they 
attribute to him cannot seriously be questioned. 

The power of the Irish Chiefs and their severity to 
their tenants in the sixteenth century being admitted, 
they have been accounted for, as I before stated, by 
supposing that the Norman nobles who became grad- 
ually clothed with Irish chieftainships — the Fitz- 
geralds, the Burkes, and the Barrys — abused an au- 
thority which in native hands would have been subj ect 
to natural limitations, and thus set an evil example to 
all the Chiefs of Ireland. The explanation has not 
the antecedent improbability which it .might seem 
to have at first sight, but I am not aware that there 
is positive evidence to sustain it. I owe a far mora 



182 STATUS OF THE FUIDHIR. lect. vi 

plausible theory of the cause of change to .Dr. Sulli- 
van, who, in his Introduction (p. cxxvi), has sug- 
gested that it was determined by the steady multipli- 
cation of Fuidhir tenants. It must be recollected that 
this class of persons would not be protected by the 
primitive or natural institutions springing out of 
community of blood. The Fuidhir was not a tribes- 
man but an alien. In all societies cemented together 
by kinship the position of the person who has lost 
or broken the bond of union is always extraordinarily 
miserable. He has not only lost his natural place in 
them, but they have no room for him anywhere 
else. The wretchedness of the outcast in India, 
understood as the man who has lost or been expelled 
from caste, does not arise from his having been de- 
graded from a higher to a lower social standing, but 
from his having no standing whatever, there being no 
other order of society open to receive him when he 
has descended from his own. It was true that the 
Fuidhir, though he had lost the manifold protection 
of his family and tribe, was not actually exposed to 
violent wrong. From that he was protected by the 
new Chief to whom he had attached himself, but be- 
tween him and this Chief there was nothing. The 
principle would always be that he was at the mercy 
of the Chief. At the utmost, some usages favourable 
to him might establish themselves through lapse of 
time, but they would have none of the obligatory 



Lzzct. vi. DISORDER OP ANCIENT IRELAND. 183 

force belonging to the rules which defined the rights 
of the Chief in respect of his Saer-stock and Daer- 
stock tenants. We can see that several of the duties 
corresponding to these rights were of a kind to invite 
abuse ; much more certainly would obligations analo- 
gous to them, but wholly imposed by the pleasure of 
the Chief, become cruelly oppressive. The ' refec- 
tions ' of the Brehon law would, by a miserable de- 
gradation, become (to borrow the language of Spen- 
ser and Davis) coin and livery, cuttings, cosherings, 
and spendings, in the case of the Fuidhirs. Meanwhile 
there were causes at work, powerfully and for long 
periods of time, to increase the numbers of this class. 
Even those Irishmen who believe that in the distant 
past there was once a tolerably well-ordered Ireland 
admit that for many centuries their country was 
racked with perpetual disturbance. Danish piracies, 
intestine feuds, Anglo-Norman attempts at conquest 
never consistently carried out or thoroughly com- 
pleted, the very existence of the Pale, and above all 
the policy directed from it of playing off against one 
another the Chiefs beyond its borders, are allowed by 
all to have distracted the island with civil war, how- 
ever the responsibility for it is to be apportioned. 
But the process is one which must have broken up 
tribes far and wide, and broken tribes imply a multi- 
tude of broken men. Even in brief intervals of peace 
the violent habits produced by constant disorder would 



184 INDIAN HEREDITARY TENANTS. lect. tl 

bring about the frequent expulsion by families of 
members for whom they refused to remain responsible, 
and in the commoner eventuality of war whole frag- 
ments would be from time to time torn away from 
tribes and their atoms scattered in every part of Ire- 
land. It is, therefore, a conjecture possessing a very 
high degree of plausibility, that the tenantry of the 
Irish Chiefs whose sufferings provoked the indignation 
of Spenser and Davis consisted largely of Fuidhirs. 

The explanation may, however, be carried beyond 
this point. You will bear in mind the passage quoted 
by me from Hunter's ' Orissa/ which shows how a 
tenantry enjoying hereditary rights is injured, even 
under a Government which sternly compels peace and 
order, by a large immigration of cultivators depen- 
dent on the landlord or Zemindar. They narrow the 
available waste land by their appropriations ; and, 
though they do not compete directly for the anciently 
cultivated land with the tenants enjoying hereditary 
rights, they greatly raise in the long run the standard 
of rent, at the same time that they arm the landlord 
with those powers of exacting it which in ancient 
Ireland consisted in the strong hand of the Chief him- 
self, and which consist, in modern India, in the money 
which puts in motion the arm of the law. I have 
no doubt whatever that a great multiplication of 
Fuidhir tenants would always seriously alter for the 
worse the position of the tenants by Saer-stock and 
Dear-stock tenure. 



saw. yii. ABOLITION OF NATIVE IRISH TENURES. 186 



LECTURE VII. 

ANCIENT DIVISIONS OF THE FAMILY 

* Before the establishment of the ( English) common 
law, all the possessions within the Irish territories 
ran either in course of Tanistry or in course of Gavel- 
kind. Every Signory or Chiefry with the portion of 
land which passed with it went without partition to 
the Tanist, who always came in by election or with 
the strong hand, and not by descent ; but all inferior 
tenanties were partible between males in Gavel- 
kind.' (Sir J. Davis' Reports, c Le Cas de Gavelkind/ 
Hil. 3, Jac. 1., before all the Judges.) 

This passage occurs in one of the famous cases in 
which the Anglo-Irish Judges affirmed the illegality 
of the native Irish tenures of land. They declared 
the English common law to be in force in Ireland, 
and thenceforward the eldest son succeeded, as heir- 
at-law, both to lands which were attached to a Sig- 
nory and to estates which had been divided according 
to the peculiar Irish custom here called Gavelkind. 
The Judges thoroughly knew that they were making 



186 THE IEISH GAVELKIND. lect. yii, 

a revolution, and they probably thought that they 
were substituting a civilised institution for a set of 
mischievous usages proper only for barbarians. Yet 
there is strong reason for thinking that Tanistry 
is the form of succession from which Primogeni- 
ture descended, and that the Irish Gavelkind, which 
they sharply distinguished from the Gavelkind of 
Kent, was nothing more than an archaic form of this 
same institution, of which Courts in England have 
always taken judicial notice, and which prevailed far 
more widely on the European Continent than succes- 
sion by Primogeniture. 

It will be convenient that we should first consider 
the so-called Gavelkind of Ireland, which is thus de- 
scribed by Sir John Davis : 'By the Irish custom 
of Gavelkind, the inferior tenanties were partible 
among all the males of the Sept, both Bastards and 
Legitimate ; and, after partition made, if any one of 
the Sept had died, his portion was not divided among 
his sonnes, but the Chief of the Sept made a new par- 
tition of all the lands belonging to that Sept, and 
gave every one his part according to his aIltiquity. , 

This statement occasions some perplexity, which 
does not, however, arise from its being antecedently 
incredible. It is made, you will observe, not of the 
Clan or Tribe in its largest extension, but of the Sept. 
The first was a large and miscellaneous body, com- 
posed in great part of men whose relationship of 



leci. vii. EXPLANATION OF IRISH GAVELKIND. 187 

blood with the Chief and the mass of free tribes- 
men, was a mere fiction. The last was a much 
smaller body, whose proximity to a common ances- 
tor was close enough to admit of their kinship either 
being a fact or being believed to be a fact. It ap- 
parently corresponded to the small Highland com- 
munities observed in Scotland, by an English officer 
of Engineers about 1730. 'They (the Highlanders) 
are divided into tribes or clans under chiefs or chief- 
tains, and each clan is again divided into branches 
from the main stock, who have chieftains over them. 
These are subdivided into smaller branches, of fifty 
or sixty men, who deduce their original from their par- 
ticular chieftains. (Quoted by Skene, ' Highlanders/ 
i. p. 156.) Such a body, as 1 have already stated, 
seems to be the Joint Family well known to the 
Hindoos, but continued as a corporate unit (which is 
very rarely the casein India), through several succes- 
sive generations. There is no difference in principle, 
and little in practical effect, between the mode of 
succession described by Davis and the way in which 
a Hindoo Joint Family is affected by the death of 
one of its members. All the property being held in 
common, and all earnings being brought into the 
4 common chest or purse,' the lapse of any one life 
would have the effect, potentially if not actually, of 
distributing the dead man's share among all the kin- 
dred united in the family group. And if, on a dis- 



188 NATURAL COMMUNISM OF PRIMITIVE GROUPS, unci. VIL 

solution of the Joint Family, the distribution of its 
effects were not per capita but per stirpes, this would 
correspond to what Davis probably means when he 
describes the Chief as giving to each man i according 
to his antiquity/ 

The special novelty of the information supplied to 
us by the ancient Irish law consists in its revealing 
to us a society of Aryan race, settled, indeed, on the 
land, and much influenced by its settlement, but 
preserving an exceptional number of the ideas and 
rules belonging to the time when kinship and not the 
land is the basis of social union. There is, therefore, 
nothing extraordinary in our finding, among the 
ancient usages of the Irish, an institution savouring 
so much of the i natural communism f of the primitive 
forms of property as this Irish Gavelkind. This 
' natural communism,' I have repeatedly urged, does 
not arise from any theory or a priori assumption as 
to the best or justest mode of dividing the land of a 
community, but from the simple impossibility, accord- 
ing to primitive notions, of making a distinction be- 
tween a number of kinsmen solely connected by their 
real or assumed descent from a common ancestor. 
The natural solvent of this communism is the land 
itself upon which the kindred are settled. As the 
common ancestry fades away into indistinctness, and 
the community gets to consider itself less an assem- 
blage of blood-relations than a body of co-villagers, 



leci. m. EXTAJfT EXAMPLES OP IRISH GAVELKmD. 189 

each household clings with increasing tenacity to the 
allotment which it has once obtained, and re- divisions 
of the land among the whole community, whether at 
fixed periods or at a death, become rarer and rarer, 
and at last cease altogether, or survive only as a 
tradition. In this way the widely diffused but 
modified form of tribal succession, which in England 
is called Gavelkind, is at last established ; the descen- 
dants of the latest holder take his property, to the ex- 
clusion of everybody else, and the rights of the por- 
tion of the community outside the family dwindle to 
a veto on sales, or to a right of controlling the modes 
of cultivation. Nevertheless, surveying the Aryan 
world as a whole, and looking to societies in which 
some fragments of the ancient social organisation 
still survive, we can discover forms of succession or 
property which come surprisingly near to the Irish 
Gavelkind described by Davis. The best example of 
this occurs in a practice which existed down to our 
own day over a large part of Russia. The principle 
was that each household of the village was entitled 
to a share of the village-lands proportioned to the 
number of adult males it contained. Every death, 
therefore, of a grown-up man diminished pro tanto the 
share of the household, and every member of it grown 
to manhood increased its lot in the cultivated area. 
There was a fixed unit of acreage corresponding to 
the extent of soil cultivable by one man's labour, 



190 DIFFICULTIES SUGGESTED BY IRISH GAVELKIND, lect.to 

and at the periodical division each household obtained 
just as much land as answered to its number of adult 
labouring men. The principal distinction between 
this system and that which seemed so monstrous and 
unnatural to Sir John Davis is, that under the first the 
re-division took place, not as each death occurred, but 
at stated intervals. I must not, indeed, be understood 
to say that I think the distinction unimportant. It 
is very possible that re -distributions at deaths of a 
common fund may mark a more advanced stage in 
the history of Property than periodical redistribution 
and that the recognition of interests for an entire life 
may have preceded and paved the way for the final 
allotment of permanent shares to separate households. 
Until, however, this last point has been reached, all 
the modes of re -division known to us are plainly 
referable to the same principle. 

The difficulty suggested by the recital in the 
4 Case of Gavelkind ' is thus not a difficulty in believ- 
ing it if it stood by itself, or if it were made with less 
generality. But it is distinctly stated that all the 
lands in Ireland which did not descend by the rule 
of Tanistry descended by the rule of Gavelkind. 
The indications of the state of law or custom furnished 
by the Brehon tracts certainly seem to me inconsis- 
tent with this assertion. They show us proprietary 
rights defined with a sharpness and guarded with a 
jealousy which is hard to reconcile with the degree 



LECT. vii. DISCREPANCIES IN IRISH EVIDENCE. 1GI 

of ' natural communism ' implied in the language of 
Davis's Report. The Corus Bescna, of which I said 
something before, and which deals with rights over 
tribal lands, implies that under certain circumstances 
they might be permanently alienated, at all events to 
the Church; and we shall presently have to discuss 
some very singular rules of succession, which, how- 
ever they may affect the Family, certainly seem to ex- 
clude the Sept. Dr. Sullivan, who appears to have 
consulted many more original authorities than have 
been translated or given to the world, expresses him- 
self as if he thought that the general law of succes- 
sion in Ireland was nearly analogous to the Gavelkind 
of Kent. ' According to the Irish custom, property 
descended at first only to the male heirs of the body, 

each son receiving an equal share Ultimately, 

however, daughters appear to have become entitled to 
inherit all, if there were no sons' (Introd., p. clxx). 
I do not expect that the apparent contradiction 
between the Brehon tracts and the language of Davis 
and his contemporaries respecting the Irish law of 
succession to land will be fully accounted for till the 
whole of the ancient legal literature is before the 
world; but meanwhile it is a plausible explanation 
of the discrepancy that the Irish and the English 
writers attended to different sets of phenomena. I 
cannot doubt that the so-called Irish Gavelkind was 
found over a great part of the country. The etate- 



102 PROBABLE VARIETY OF IRISH TENURES, lect. vn. 

ments of English authorities on the point are ex- 
tremely precise. They affirm that ' no civil habita- 
tions were erected, and no enclosure or improvement 
was made of land where Gavelkind was in use/ and 
they say that this was especially the case in Ulster, 
i which was all one wilderness.' Nevertheless it is ex- 
tremely probable that another set of facts justified the 
indications given by the Brehon tracts, and that there 
were other modes of succession known besides succes- 
sion by Tanistry on the one hand, and besides on the 
other hand the peculiarly archaic system under which 
each lapsed share was at once divided between all the 
members of the Sept. Such an institution as the last, 
though exceptional circumstances may keep it alive, 
contains within itself a principle of decay. Each house- 
hold included in the Joint Family gains a firmer hold 
on its share of the lands as the distance increases 
from the common ancestor ; and finally appropriates 
it, transmitting it exclusively to offshoots from its 
own branch. Nothing is more likely than that there 
were frequent examples of Irish septs with their 
land-customs in this condition; and it is still more 
probable that usages of a similarly modern stamp 
prevailed in estates permanently severed or c booked 
off ' from tribal possession or established at a distance 
from the main seat of the tribe. It is true that, in 
society based on kinship, each family separated from 
the rest tends itself to expand into a joint family or 



U5CT. Tn. PRIVATE ESTATES OP CHIEFS. ' 193 

sept; but in these severed estates custom would be 
apt to be enfeebled and to abate something of its 
tyranny. Thus, putting the rule of Tanistry aside, I 
can quite conceive that the Irish Gavelkind, the 
modern Gavelkind known to Kent, and many forms 
of succession intermediate between the two, co-existed 
in Ireland. Both the English and the Irish authorities 
on law had prejudices of their own which might lead 
them to confine their attention to particular usages. 
The Brehon writers seem to me distinctly biassed in 
favour of the descent of property in individual 
families, which commended itself to them as lawyers, 
as friends of the Church, and (it may be) as well- 
wishers to their country. On the other, the strange 
ancient form of ownership which he called Gavelkind 
would fascinate the observation of an Englishman resi- 
dent in Ireland. He would assuredly have none of the 
curiosity about it which we feel nowadays, but sur- 
prise and dislike would fix his attention upon it, and 
perhaps prevent his recognising the comparatively 
wide diffusion of institutions of the opposite type. 

This interpretation of the seeming contradiction 
between our authorities is consistent with the very 
little we know respecting actual divisions of land in 
ancient Ireland. It constantly happened both in 
Ireland and the Scottish Highlands that a Chief, 
besides the domain which appertained to his office, 
had a <n-eat estate held under what the English 

CD CD 





134 ACTUAL DIVISIONS OF LAND BY CHIEFS, lect. vn. 

lawyers deemed the inferior tenure. There are two 
cases on record in which Irish Chiefs of considerable 
dignity distributed such estates among their kindred. 
In the fourteenth century Connor More O'Brien, a 
chief who had children of his own, is stated to have 
divided his land on principles which must have more 
or less corresponded to those condemned by the 
Anglo-Irish Judges. The bulk of the estate he as- 
signed to the various families of the Sept formed by 
his own relatives. To himself he reserved only one- 
sixth of one -half of one -third, and even this sixth he 
divided between his three sons, reserving only a rent 
to himself. But at the end of the fifteenth century 
Donogh O'Brien, son of Brien Duff, son of Connor, 
King of Thomond, divided all his lands between his 
eleven sons, reserving to himself only the mansion and 
the demesne in its vicinity. The difference between 
the two cases, which (it is instructive to observe) are 
separated by at least a century, appears to me suffi- 
ciently plain. In the first the land had remained in a 
state of indivision during several generations ; in the 
second it had been periodically divided. Connor 
More O'Brien was distributing the inheritance of a 
joint family; Donogh O'Brien that of a family. 
(Vallancey, ' Collectanea de Rebus Hibernicis/ i. 
264, 265.) 

It is worthy of observation that in the more 
ancient example Connor More O'Brien appears to 



ect. vii. SUCCESSION OF MODES UF DIVISION- 195 

have paid regard to the various stirpes or stocks into 
which the descendants of the original founder of his 
family had branched out. The principle he followed 
I suppose to be the same as that pointed out by Davis 
when he speaks of the chief dividing a lapsed share 
between the members of a sept l according to their 
antiquity.' The proceeding deserves to be noted, as 
showing an advance on the oldest known tribal 
customs. In the most archaic forms of the Joint 
Family, and of the institution which grew out of it, 
the Village- Community, these distributions are per 
eapita\ no one person who is entitled takes more than 
another, whether the whole estate or a portion is 
divided, and no respect is paid to the particular way 
in which a given individual has descended from the 
common ancestor. Under a more advanced system 
the distribution is per stirpes; careful attention is paid 
to the lines into which the descendants of the ancestor 
of the joint-family have separated, and separate rights 
are reserved to them. Finally, the stocks themselves 
escape from the sort of shell constituted by the Joint 
Family; each man's share of the property, now 
periodically divided, is distributed among his direct 
descendants at his death. At this point, property in 
its modern form has been established; but the Joint 
Family has not wholly ceased to influence successions. 
When direct descendants fail it is even now the i ules 
of the Joint Family which determine the taking of 



196 DISTRIBUTION DURING LIFE. lect. to 

the inheritance. Collateral successions, when they 
are distant, follow the more primitive form of the 
old institution, and are per capita] when they are 
those of the nearer kindred they are adjusted to its 
more modern shape, and are per stirpes. 

The remark has further to be made that both 
Connor O'Brien and Donogh O'Brien divided their 
own land among their sons or kindred during their 
own lifetime. Like Laertes in the Odyssee, the 
old Chief, in the decay of his vigour, parts with his 
power and retains but a fraction of the property he 
had administered ; and the poorer freeman becomes 
one of those L senior 7 pensioners of the tribe so often 
referred to in the tracts. Precisely the same practice 
is recognised, and even (as some think) enjoined, by 
the more archaic bodies of Hindoo jurisprudence. 
The principle is that the right of each member of a 
family accrues at his birth ; and, as the family has in 
theory a perpetual existence, there is no particular 
reason why, if the property is divided at all, it should 
be exclusively divided at a death. The power of 
distributing inheritances vested in the Celtic chiefs 
has been made the basis of some very doubtful 
theories, but I have no doubt it is essentially the 
same institution as the humble privilege which is 
reserved to the Hindoo father by the Mitakshara. 
It is part of the prerogative belonging to the repre- 
sentative of the purest blood in the joint family; but 



lfct. til THE BIRTHKIGHT. 197 

in proportion as the Joint Family, Sept, or Clan 
becomes more artificial, the power of distribution 
tends more and more to look like mere administrative 
authority. 

Under some systems of Hindoo law, the father, 
when making a distribution of property during his 
lifetime, is entitled to retain a double share, and by 
some Indian customs the eldest son, when dividing 
the patrimony with his brothers, takes twice as much 
as the others. There are a good many traces of the 
usage in this last form in a variety of communities. 
It is, for instance, the ' birthright ' of the Hebrew 
patriarchal history. I mention it particularly because 
it seems to me to be sometimes improperly confounded 
with the right conferred by what we call the rule of 
Primogeniture. But the double share is rather given 
as the reward or (perhaps we should say) the security 
for impartial distribution, and we find it often 
coupled with the right to take exclusively such 
things as are deemed incapable of partition, the 
family house, for instance, and certain utensils. The 
proof that it is not essentially a privilege of the eldest 
son, we find in the circumstances that it is sometimes 
enjoyed by the father and sometimes by the youngest 
of the sons, and in this way it is connected with our 
own custom of Borough English, of which I shall 
have more to say presently. There is a difference of 
historical origin between this kind of p-'ivileged sue- 



198 PRIMOGENITURE. lbct. yn 

cession and that which we call Primogeniture. The 
first is descended from a custom of the Tribe; the 
last, to which I now pass, seems to me traceable to 
the special position of the Chief. 

The Brehon tracts at present translated do not 
add much to the knowledge which we possessed of 
the Irish customs corresponding to the usage of 
exclusive succession by the eldest son; and Primo- 
geniture remains what I called it thirteen years ago 
('Ancient Law/ p. 227), ' one of the most difficult 
problems of historical jurisprudence. , The first of 
the difficulties which surround it is the total absence, 
before a particular epoch in history, of recorded 
precedents for any such mode of succession to pro- 
perty. It was unknown to the Hellenic world. It 
was unknown to the Roman world. It was unknown 
to the Jews, and apparently to the whole Semitic 
world. In the records of all these societies there are 
vestiges of great differences between the succession 
of males and the succession of females ; but there 
was nothing like the exclusive succession of a single 
son to property, although the descent of sovereignties 
to the eldest son of the last reigning king was a 
familiar fact, and though the Greek philosophers had 
conjectured that, in an earlier state of society than 
theirs, the smaller groups of men — families and vil- 
lages — had been governed by eldest son after eldest 
son. 



/ 
lect. vn. ANCIENT FORMS OF PRIMOGENITURE. 199 



Even when the Teutonic race spread over 
Western Europe they did not bring with them 
Primogeniture as their ordinary rule of succession. 
The allodial property of the Teutonic freeman, that 
share which he had theoretically received at the 
original settlement of the brotherhood to which he 
belonged on their domain, was divided at. his death, 
when it was divided at all, equally between his sons 
or equally between his sons and daughters. It is 
quite certain, however, that the appearance of Primo- 
geniture in the West and its rapid diffusion must be 
connected with the irruption of the barbarians, and 
with the tribal ideas re -introduced by them into the 
Roman world. At this point, however, we encounter 
another difficulty. The Primogeniture which hrs~ 
meets us is not uniformly the Primogeniture with 
which we are now familiar. The right of the eldest 
son sometimes gives way to the right of the eldest 
male relative of the deceased, and occasionally it 
seems as if neither the succession of the eldest son 
nor that of the eldest relative could take effect 
without election or confirmation by the members of 
the aggregate group to which both belong. 

As usual, we have to look for living illustrations 
of the ancient system to the usages of the Hindoos. 
The Family, according to the Hindoo theory, is des- 
potically governed by its head; but if he dies and the 
Family separates at his death, the property is equally 



200 MANAGER OF JOINT FAMILY. lect. TO 

divided between the sons. If, however, the Family 
does not separate, but allows itself to expand into a 
Joint Family, we have the exact mixture of election 
and doubtful succession which we find in the early 
examples of European primogeniture. The eldest 
son, and after him his eldest son, is ordinarily the 
manager of the affairs of the Joint Family, but his 
privileges theoretically depend on election by the 
brotherhood, and may be set aside by it, and, when 
they are set aside, it is generally in favour of a 
brother of the deceased manager, who, on the score 
of greater age, is assumed to be better qualified than 
his nephew for administration and business. In 
ancient Irish society the Joint Family, continued 
through many generations, 'has grown first into the 
Sept and then into the Clan, contracting a greater 
degree of artificiality in proportion to its enlarge- 
ment. The importance, meanwhile, of the Chief to 
the Tribe has rather increased than diminished, since 
he is no longer merely administrator of its civil 
affairs but its leader in war. The system produced 
from these elements appears to me sufficiently intel- 
ligible. The veneration of the Tribe is not attracted 
by individuals of the Chieftain's family, but by the 
family itself, as representing the purest blood of the 
entire brotherhood. It chooses its head and leader 
(save on the very rarest occasions) from this family 
and there are instances of the choice being systemati- 






lbct. vn. ELDEST EELATIVE PREFERRED TO ELDEST SOS . 201 

cally made from two families in alternation. But the 
necessity of having a military leader in the vigour of 
his physical and mental powers is much too imperious 
to admit of his choice being invariably deferred to 
the death of the ruling Chief, or to allow of the 
election falling universally or even generally on his 
son. ' It is a custom among all the Irish,' says 
Spenser, l that presently after the death of any of 
their chief lords or captains, they do presently 
assemble themselves to a place generally appointed 
and known unto them to choose another in his 
stead, where they do nominate and elect for the most 
part, not the eldest son, nor any of the children of 
the lord deceased, but the next to him of blood that is 
eldest and worthiest, as commonly the next brother 
if he have any, or the next cousin, and so forth, as 
any is elder in that kindred or sept; and then, next 
to him, they choose the next of the blood to be 
Tanaist, who shall succeed him in the said Captaincy, 
if he live thereunto. . . . For when their Captain 
dieth, if the Signory should descend to his child, and 
he perhaps an infant, another might perad venture 
step in between or thrust him out by strong hand, 
being then unable to defend his right and to with- 
stand the force of a forreiner ; and therefore they do 
appoint the eldest of the kin to have the Signory, for 
that commonly he is a man of stronger years and 
better experience to maintain the inheritance and to 



202 



ORIGIN OF PRIMOGENITURE. 



LECT. VU 



defend the country. . . . And to this end the Tanaist 
is always ready known, if it should happen to the 
Captain suddenly to die, or to be slain in battle, or to- 
be out of the country, to defend and keep it from all 
such dangers.' (Spenser's 'View of the State of 
Ireland.') 

Primogeniture, therefore, considered as a rule of 
succession to property, appears to me to be a pro- 
duct of tribal leadership in its decay. Some such 
system as that represented by the Irish Tanistry be- 
longed probably at one time to all the tribal commu- 
nities which overran the Roman Empire, but no 
precise assertion can be made as to the stage in their 
history at which it began to be modified, especially 
since Sohm's investigations (in his ' Frankische 
Reichs-und Gerichtsverfassung') have shown us how 
considerably the social organisation of some of these 
communities had been affected by central or royal 
authority in the interval between the observations 
of Tacitus and the writing of the Salic Law. But I 
think we may safely conjecture that the transition 
from the older to the newer Primogeniture took place 
everywhere under circumstances nearly the reverse 
of those which kept Tanistry so long alive in Ireland. 
Wherever some degree of internal peace was main- 
tained during tolerably long periods of time, wherever 
an approach was made to the formation of societies of 
the distinctive modern type, wherever military and 



xECT. ra. TRANSFORMATION OF PRIMOGENITURE. 20S 

civil institutions began to group themselves round the 
central authority of a king, the value of strategical 
capacity in the humbler chiefs would diminish, and 
in the smaller brotherhoods the respect for purity of 
blood would have unchecked play. The most natural 
object of this respect is he who most directly derives 
his blood from the last ruler, and thus the eldest son, 
even though a minor, comes to be preferred in the 
succession to his uncle; and, in default of sons, the 
succession may even devolve on a woman. There 
are not a few indications that the transformation of 
ideas was gradual. The disputes among great High- 
land families about the title to the chieftaincy of 
particular clans appear to date from a period when 
there was still a conflict between the old principle of 
succession and the new; and at a relatively later 
period, when throughout most of Western Europe 
tribal customs have been replaced by feudal rules, 
there is a visible uncertainty about such of these 
rules as affect succession. Glanville, writing of Eng- 
lish military tenures in the later part of the reign of 
Henry the Second, observes: 'When anyone dies, 
leaving a younger son and a grandson, the child of his 
eldest son, great doubt exists as to which of the two 
the law prefers in the succession to the other, whether 
the son or the grandson. Some think the younger son 
has more right to the inheritance than the grandson 
.... but others incline to think that the grandson 



204 BRUCE AND BALIOL. leci TH, 

ought to be preferred to his uncle/ (Glanville, 
vii. 7.) The very same question of principle arose 
between the descendants of daughters in the contro- 
versy between Bruce and Baliol. The succession 
to the Crown of Scotland was ultimately settled, as it 
would have been in earlier times, by what amounted to 
national election, but the decision of Edward the First 
in favour of Baliol was undoubtedly in accordance with 
principles which were gaining ground everywhere, 
and I quite agree with Mr. Barton (ii. 249) that the 
celebrity of the dispute and the full consideration 
given to it did much to settle the rule which prevailed 
in the end, that the whole of the descendants of an 
elder child must be exhausted before those of the 
younger had a title. When, however, the eldest son 
had once taken the place of his uncle as the heir to 
the humbler chieftaincies, he doubtless also obtained 
that ' portion of land attached to the Signory or 
Chiefry which went without partition to the Tanaist ; ' 
and, as each community gradually settled down into 
comparative peace under royal or central authority, 
this demesne, as it was afterwards called, must have 
assumed more and more the character of mere pro- 
perty descending according to the rule of primogeni- 
ture. It may be believed that in this way a principle 
of inheritance was formed which first of all extended 
from the demesne to all the estates of the holder of 
the Signory, however acquired, and ultimately deter- 



/ 
lect. TH. ABOLITION OF TANISTHY. 205 

mined the law of succession for the privileged ch sses 
throughout feudalised Europe. One vestige of this 
later course of change may perhaps be traced in the 
noble tenure once widely extended on the Continent, 
and called in French 4 Parage,' under which the near 
kinsmen of the eldest son still took an interest in the 
family property, but held it of him as his Peers. 
There were, however, other causes than those just 
stated which led to the great development of Primo- 
geniture in the early part of the Middle Ages, but for 
an examination of them I may be allowed to refer to 
the work of mine which I mentioned above. ( c An- 
cient Law J pp. 232 et seq.) 

I do not think that the disaffirmation of the 
legality of Tanistry, and the substitution for it of the 
rule of Primogeniture, can justly be reckoned among 
the mistakes or crimes of the English in Ireland. The 
practice had been perpetuated in the country by its 
disorders, which preserved little groups of kinsmen 
and their petty chiefs in an unnatural vitality; and 
probably Sir John Davis does not speak too harshly 
of it when he charges it with ' making all possessions 
uncertain, and bringing confusion, barbarism, and in- 
civility.' The decision against the Irish Gavelkind 
was far less justifiable. Even if the institution were 
exactly what Davis supposed it to be, there was in- 
justice in suddenly disappointing the expectations of 
the distant kindred who formed the sept of the last 



206 IRELAND AND INDIA. lect. yh 

holder ; but it is probable that several different modes 
of succession were confounded under the name of 
Gavelkind, and that in many cases a number of 
children were unjust iuably deprived of their inherit- 
ance for the advantage of one. All that can be said 
for the authors of the revolution is that they seem to 
have sincerely believed the mischievousness of the 
institutions they were destroying ; and it is some evi- 
dence of this that, when their descendants a century 
later really wished to inflict an injury on the majority 
of Irishmen, they re-introduced Gavelkind, though 
not in its most ancient shape. They ' gavelled ' the 
lands of Papists and made them descendible to all 
the children alike. There seems to me a melancholy 
resemblance between some of the mistakes which, at 
two widely distant epochs, were committed by Eng- 
lishmen, apparently with the very best intentions, 
when they were brought into contact with stages in 
the development of institutions earlier than that 
which their own civilisation had reached. Sir John 
Davis's language on the subject of the Irish custom 
of Gavelkind might be that of an Anglo-Indian 
lawyer who should violently censure the Brahminical 
jurists for not confounding families with joint un- 
divided families. I do not know that any such mis- 
take has been made in India, though undoubtedly 
the dissolution of the Joint Family was in the early 
days of our government unduly encouraged by our 



/ 
tECT. yu. IRELAND, INDIA, AND RUSSIA. 207 

Courts. But there is a closer and more unfortunate 
similarity between some of the English experiments 
in Ireland and those tried in India. Under an Act 
of the twelfth year of Queen Elizabeth the Lord 
Deputy was empowered to take surrenders and regrant 
estates to the Irishry. The Irish lords, says Davis, 
* made surrenders of entire countries, and obtained 
grants of the whole again to themselves only, and 
none other, and all in demesne. In passing of which 
grants, there was no care taken of the inferior septs 
of people. ... So that upon every such surrender or 
grant, there was but one freeholder made in a whole 
country, which was the lord himself; all the rest were 
but tenants at will, or rather tenants in villenage.' 
There are believed to be many Indian joint-families 
or septs which, in their later form of village- commu- 
nities, had the whole of their lands similarly conferred 
on a single family out of their number, or on n royal 
taxgatherer outside them, under the earliest Indian 
settlements. The error was not in introducing abso- 
lute ownership into Ireland or India, but in the 
apportionment of the rights of which property is made 
up. How, indeed, this apportionment shall be wisely 
and justly made, when the time has fully come for 
putting individual property in the place of collective 
property by a conscious act of the State, is a pro- 
blem which taxes to the utmost the statesmanship of 
the most advanced era, when animated by the highest 



208 DIVISIONS OF THE 1EISH FAMILY. lect. vn. 

benevolence and informed with the widest knowledge. 
It has been reserved for our own generation to wit- 
ness the least unsatisfactory approach which has 
hitherto been made towards the settlement of this 
grave question in the great measures collectively 
known as the enfranchisement of the Russian serfs. 

The Irish practice of Tanistry connects itself with 
the rule of Primogeniture, and the Irish Gavelkind 
with the rules of succession most widely followed 
among both the Eastern and Western branches of the 
Aryan race ; but there are some passages in the Bre- 
hon tracts which describe an internal division of the 
Irish Family, a classification of its members and a 
corresponding system of succession to property, ex- 
tremely unlike any arrangement which we, with our 
ideas, can conceive as growing out of blood -relation- 
ship. Possibly, only a few years ago, these passages 
would have been regarded as possessing too little 
interest in proportion to their difficulty for it to be 
worth anybody's while to bestow much thought upon 
their interpretation. But some reasons may be given 
why we cannot wholly neglect them. 

The distribution of the Irish Family into the 
Geilfine, the Deirbhfine, the Iarfine, and the Ind- 
fine — of which expressions the three last are trans- 
lated the True, the After, and the End Families — 
is obscurely pointed at in several texts of the earlier 
volumes of the translations ; but the Book of Aicill, 



/ 
usct. TH. DIVISIONS OF THE IRISH FAMILY. 209 

in the Third Volume, supplies us for the first time 
with statements concerning it having some ap- 
proach to precision. The learned Editor of this vo- 
lume, who has carefully examined them, describes 
their effect in the following language : 4 Within the 
Family, seventeen members were organised in four 
divisions, of which the junior class, known as the 
Geilfine division, consisted of live persons ; the 
Deirbhfine, the second in order ; the Iarfine, the 
third in order; and the Indfine, the senior of all, 
consisted respectively of four persons. The whole 
organisation consisted, and could only consist, of 
seventeen members. If any person was born into 
the Geilfine division, its eldest member was promoted 
into the Deirbhfine, the eldest member of the Deirbh- 
fine passed into the Iarfine ; the eldest member of the 
Iarfine moved into the Indfine ; and the eldest mem- 
ber of the Indfine passed out of the organisation 
altogether. It would appear that this transition from 
a lower to a higher grade took place upon the intro- 
duction of a new member into the Geilfine division, 
and therefore depended upon the introduction of new 
members, not upon the death of the seniors.' 

It seems an inference from all the passages bear- 
ing on the subject that any member of the Joint- 
family or Sept might be selected as the starting- 
point, and might become a root from which sprung 
as many of these groups of seventeen men as he had 

P 



210 



DEGREES OF CONSANGUINITY. 



1ECT. VII. 



eons. As soon as any one of the sons had four children, 
a full Geilfine sub-group of five persons was formed ; 
but any fresh birth of a male child to this son or to 
any of his male descendants had the effect of sending 
up the eldest member of the Geilfine sub-group, pro- 
vided always he were not the person from whom it 
had sprung, into the Deirbhfine. A succession of 
such births completed in time the Deirbhfine division, 
and went on to form the Iarfine and the Indfine, the 
After and the End Families. The essential principle 
of the system seems to me a distribution into fours. 
The fifth person in the Geilfine division I take to be 
the parent from whom the sixteen descendants spring, 
and it will be seen, from the proviso which I inserted 
above, that I do not consider his place in the organi- 
sation to have been ever changed. He appears to be 
referred to in the tracts as the Geilfine Chief. 

The interest of this distribution of the kinsmen 
consists in this : whatever else it is, it is not a classi- 
fication of the members of the family founded on 
degrees of consanguinity, as we understand them. 
And, even if we went no farther than this, the fact 
would suggest the general reflection which often oc- 
curs to the student of the history of law, that many 
matters which seem to us altogether simple, natural, 
and therefore probably universal, are in reality arti- 
ficial and confined to limited spheres of application. 
When one of us opens his Prayer-book and glances 



LECT. vn. FAMILY NOT DIVIDED ACCORDING TO DEGREES. 211 

at the Table of Prohibited Degrees, or when the la-?v- 
student turns to his Blackstone and examines the 
Table of Descents, he possibly knows that disputes 
have arisen about the rights and duties proper to 
be adjusted to these scales of relationship, but it 
perhaps has never occurred to him that any other 
view of the nature of relationship than that upon 
which they are based could possibly be entertained. 
Yet here in the Book of Aicill is a conception of 
kinship and of the rights flowing from it altogether 
different from that which appears in the Tables of 
Degrees and of Descents. The groups are not formed 
upon the same principles, nor distinguished from one 
another on the same principles. The English Tables 
are based upon a classification by degrees, upon 
identity in the number of descents by which a given 
class of persons are removed from a given person. 
But the ancient Irish classification obviously turns 
upon nothing of the sort. A Geilfine class may con- 
sist of a father and four sons who are not in the same 
degree, and the Brehon writers even speak of its 
consisting of a father, son, grandson, great-grandson, 
and great-great-grandson, which is a conceivable case 
of Geilfine relationship, though it can scarcely have 
been a common one. Now, each of these relatives is 
in a different degree from the others. Yet this dis- 
tribution of the family undoubtedly affected the law 
of inheritance, and the Geilfine class, to our eyes so 



212 DESCRIPTIVE AND CLASSIFICATORY SYSTEMS, eke, m 

anomalous, might succeed in certain eventualities to 
the property of the other classes, of which the compo- 
sition is in our eyes equally arbitrary. 

This singular family organisation suggests, how- 
ever, a question which, in the present state of enquiry 
on the subject which occupies us, cannot fairly be 
avoided. I have spoken before of a volume on 4 Sys- 
tems of Consanguinity and Affinity in the Human 
Family/ published by the Smithsonian Institute at 
Washington. The author, Mr. Lewis Morgan, is one 
of the comparatively few Americans who have per- 
ceived that, if only on the score of the plain extant 
evidences of the civilisation which was once enjoyed 
and lost by some branches of their stock, the customs 
and ideas of the Red Indians deserve intelligent 
study. In prosecuting his researches Mr. Morgan 
was struck with the fact that the conception of Kin- 
ship entertained by the Indians, though extremely 
clear and precise, and regarded by them as of much 
importance, was extremely unlike that which prevails 
among the now civilised races. He then commenced 
a laborious investigation of the whole subject, chiefly 
through communications with correspondents in all 
parts of the world. The result at which he arrived 
was that the ideas on the subject of relationship en- 
tertained by the human family as a whole were extra- 
ordinarily various, but that a generalisation was pos- 
sible, and that these ideas could be referred to one or 



Lect. vii. DESCRIPTIVE AND CLASSIFICATORT SYSTEMS. 213 

other of two distinct systems, which Mr. Morgan calls 
respectively the Descriptive and the Classificatory 
system. The time at our command will only allow 
me to explain his meaning very briefly. The De- 
scriptive system is that to which we are accustomed. 
It has come to us from the Canon law, or else from 
the Koman law, more particularly as declared in 
the 118th Novel of Justinian, but it is not at all con- 
fined to societies deeply affected by Civil and Canon 
law. Its essence consists in the giving of separate 
names to the classes of relatives which are formed by 
the members of the family who are removed by the 
same number of descents from yourself, the ego or 
propositus, or from some common ancestor. Thus, 
your uncle stands to you in the third degree, there 
being one degree or step from yourself to your father 
or mother, a second from your father or mother to their 
parents, a third from those parents to their other 
children, among whom are your uncles. And c uncle ' 
is a general name for all male relatives standing to 
you in this third degree. The other names employed 
under the Descriptive system are among the words 
in most common use ; yet it is to be noted that the 
system cannot in practice be carried very far. We 
speak of uncle, aunt, nephew, niece, cousin ; but then 
we get to great-uncle, grand-nephew, and so forth, 
and at length lose our way amid complications of 
4 great ' and ' grand ' until we cease to distinguish our 



214 THE CLASSIFICATORY SYSTEM OP KINSHIP, lect. th, 

distant kindred by particular designations. The 
Eoman technical law went considerably farther than 
we do with the specific nomenclature of relatives ; 
yet there is reason to think that the popular dialects 
of Latin were more barren, and no Descriptive sys- 
tem can go on indefinitely with the process. On the 
other hand, the Classificatory system groups the 
relatives in classes, often large ones, which have no 
necessary connection with degrees. Under it a man's 
father and his uncles are grouped together, sometimes 
his uncles on his father's side, sometimes on the 
mother's side, sometimes on both ; and perhaps they 
are all indifferently called his fathers. Similarly, a 
man's brothers and all his male cousins may be classed 
together and called his brothers. The effect of the 
system is in general to bring within your mental 
grasp a much greater number of your kindred than 
is possible under the system to which we are accus- 
tomed. This advantage is gained, it is true, at the 
expense of the power of discriminating between the 
members of the several classes, but still it may be 
very important in certain states of society, since each 
of the classes usually stands under some sort of con- 
joint responsibility. 

I am not now concerned with the explanation of 
the Classificatory system of Kinship. Mr. Morgan 
and the school to which he belongs find it, as I said 
before, in a state of sexual relations, alleged to have 



lect. tit. MEANING OF IRISH DIVISION. 215 

once prevailed universally throughout the human 
race, and known now to occur in some obscure frag- 
ments of it. The fullest account of the condition of 
society in which these views of relationship are be- 
lieved to have grown up may be read in Mr. McLen- 
nan's most original work on Primitive Marriage. The 
point before us, however, is whether we have a trace 
of the Classificatory system in the Irish division oi 
the Family into four small groups, no one of which is 
necessarily composed of relatives of the same degree, 
and each of which has distinct rights of its own, and 
stands under definite responsibilities. Undoubtedly J 
the Descriptive system was that which the anciem 
Irish generally followed ; but still it would be an in • 
teresting, and, in the opinion of pre-historic writers, 
an important fact, if a distribution of the Family only 
intelligible as a relic of the Classificatory system 
remained as a 'survival' among the institutions re- 
flected by the Brehon Laws. My own opinion, which 
I will state at once, is that the resemblance between the 
Irish classification of kindred and the modes of classi- 
fication described by Mr. Morgan is only superficial 
and accidental. The last explanation Mr. Morgan 
would admit of the remarkable ideas concerning kin- 
ship which form the subject of his book would be 
that they are connected with the Patria Potestas, that 
famous institution which held together what he and 
his school consider to be a relatively modern form of 



216 ETYMOLOGY OF GEILFINE. lecx. vii. 

the Family. I think, however, I can assign some at 
least plausible reasons for believing that this perplex- 
ing four-fold division of the Celtic Family is neither 
a mere survival from immemorial barbarism nor, as 
most persons who have noticed it have supposed, a 
purely arbitrary arrangement, but a monument of that 
Power of the Father which is the first and greatest 
land-mark in the course of legal history. 

Let me repeat that the Irish Family is assumed to 
consist of three groups of four persons and one group 
of five persons. I have already stated that I consider 
the fifth person in the group of five to be the parent 
from whom all the other members of the four divisions 
spring, or with whom they are connected by adoptive 
descent. Thus, the whole of the natural or adoptive 
descendants are distributed into four groups of four 
persons each, their rank in the Family being in the 
inverse order of their seniority. The Geilfine group 
is several times stated by the Brehon lawyers to be 
at once the highest and the youngest. 

Now, Mr. Whitley Stokes has conveyed to me his 
opinion that ' Geilfine ' means ' hand-family/ As I 
have reason to believe that a different version of the 
term has been adopted by eminent authority, I will 
give the reasons for Mr. Stokes's view. 4 Gil ' means 
4 hand' — this was also the rendering of O'Curry — and 
it is, in fact, the Greek word x € W* I n several Aryan 
languages the term signifying ' hand ' is an expressive 



sect. yh. IRISH AND ROMAN FAMILY. 217 

equivalent for Power, and specially for lamily or 
Patriarchal Power. Thus, in Greek we have viroxetpios 
and x^PVSi f° r tne person under the hand. In Latin 
we have lierus ' master/ from an old word, cognate 
to x € ^°> an d we have also one of the cardinal terms of 
ancient Roman Family Law, manus, or hand, in the 
sense of Patriarchal authority. In Roman legal phra- 
seology, the wife who has become in law her husband's 
daughter by marriage is in manu. The son discharged 
from Paternal Power is emancipated. The free person 
who has undergone manumission is in mancipio. In the 
Celtic languages we have, with other words, 'Gilla/ 
a servant, a word familiar to sportsmen and travellers 
in the Highlands and to readers of Scott in its 
Anglicised shape, c Gillie.' 

My suggestion, then, is that the key to the Irish 
distribution of the Family, as to so many other things 
in ancient law, must be sought in the Patria Potestas. 
It seems to me to be founded on the order of eman- 
cipation from Paternal authority. The Geilfine, the 
Hand-family, consists of the parent and the four 
natural or adoptive sons immediately under his 
power. The other groups consist of emancipated 
descendants, diminishing in dignity in proportion to 
their distance from the group which, according to 
archaic notions, constitutes the true or representative 
family. 

The remains which we possess of the oldest Ro- 



218 ANCIENT ROMAN AND IRISH FAMILY. lect. ye 

man law point to a range of ideas very similar to that 
which appears to have produced the Irish institution. 
The Family under Patria Potestas was, with the Pater 
Familias, the true Roman Family. The children who 
were emancipated from Paternal Power may have 
gained a practical advantage, but they undoubtedly 
lost in theoretical dignity. They underwent that 
loss of status which in ancient legal phraseology was 
called a capitis deminutio. We know too that, according 
to primitive Roman law, they lost all rights of in- 
heritance, and these were only gradually restored to 
them by a relatively modern institution, the Equity of 
the Roman Praetor. Nevertheless there are hints on 
all sides that, as a general rule, sons as they advanced 
in years were enfranchished from Paternal Power, and 
no doubt this practice supplies a partial explanation 
of the durability of the Patria Potestas as a Roman 
institution. The statements, therefore, which we 
find concerning the Celtic Family would not be very 
untrue of the Roman. The youngest children were 
first in dignity. 

Of course I am not contending for an exact re- 
semblance between the ancient Roman and ancient 
Celtic Family. We have no trace of any systematise^ 
discharge of the sons from the Roman Patria Potes- 
tas ; their enfranchisement seems always to have been 
dependent on the will of the Pater-Familias. The 
divisions of the Celtic Family seem, on the other 



lect. vn. INHERITANCE AND DIVISIONS OF FAMILY. 219 



hand, to have been determined by a self-acting prin- 
ciple. An even more remarkable distinction is sug- 
gested by passages in the Book of Aicill which seem 
to show that the parent, who retained his place in the 
Geilfine group, might himself have a father alive. 
The peculiarity, which has no analogy in ancient 
Roman law, may possibly have its explanation in 
usages which many allusions in the Brehon law show 
to have been followed by the Celts, as they were by 
several other ancient societies. The older members 
of the Family or Joint Family seem in advanced age 
to have become pensioners on it, and, like Laertes 
in the Odyssee, to have vacated their privileges of 
ownership or of authority. On such points, however, 
it is safest to suspend the judgment till the Brehon 
law has been more thoroughly and critically ex- 
amined. 

At the date at which the Book of Aicill was put 
together the Irish division of the Family seems only 
to have had importance in the law of succession after 
death. This, however, is the rule in all societies. 
When the ancient constitution of the Family has 
ceased to affect anything else, it affects inheritance. 
All laws of inheritance are, in fact, made up of the 
debris of the various forms which the Family has as- 
sumed. Our system of succession to personalty, and 
the whole French law of inheritance, are derived 
from Roman law, which in its latest condition is a 



220 



THE MJMBER FIVE. 



LTCT. VIE. 



mixture of rules having their origin in successive 
ascertainable stages of the Roman Family, and is a 
sort of compromise between them. 

The authors of the Brehon Law Tracts frequently 
compare the Geilfine division of the Family to the 
human hand, but with them the comparison has at 
first sight the air of being purely fanciful. The Geil- 
fine group has five members, and the hand has five 
fingers. Dr. Sullivan — who, however, conceives the 
Geilfine in a way materially different from the 
authorities whom I follow — tells us that ' as they 
represented the roots of the spreading branches of 
the Family, they were called the cuic mera na Fine, 
or the c five fingers of the Fine. 1 If the explanation 
of c Geilfine ' which I have partly taken from Mr. 
Whitley Stokes be correct, we must suppose that, at 
the time at which the Brehon tracts were thrown 
into their present form, the Patria Potestas of the 
ancient Irish, though frequently referred to in the 
tracts as the father's power of 'judgment, proof, and 
witness' over his sons, had nevertheless consider- 
ably decayed, as it is apt to do in all societies under 
unfavourable circumstances, and that with this decay 
the association of the Geilfine group with 'hand* 
in the sense of Paternal Power had also become 
faint. There is, however, a real connection of an- 
other kind between the Geilfine group and the five 
fingers of the hand. If you ask why in a large 



lect. vn. BOROUGH ENGLISH. 221 

number of ancient societies Five is the representative 
number, no answer can be given except that there 
are five fingers on the human hand. I commend to 
your attention on this point Mr. Tylor's most in- 
structive chapter on the infancy of the Art of 
Counting, in the first volume of his 4 Primitive Cul- 
ture.' ' Finger-counting,' he observes, ' is not only 
found among savages and uneducated men, carrying 
on a part of their mental operations where language 
is only partly able to follow it, but it also retains a 
place and an undoubted use among the most cultured 
nations as a preparation and means of acquiring 
higher arithmetical methods' (I. 246.) Five is 
thus a primitive natural maximum number. You 
will recollect that the early English Township was 
represented by the Reeve and the four men. The 
Council of an Indian Village Community most com- 
monly consists of five persons, and throughout the 
East the normal number of a Jury or Board of 
arbitrators is always five — the punchayet familiar to 
all who have the smallest knowledge of India. The 
Geilfine, the representative group of the Irish Family, 
consisting of the Parent and the four descendants still 
retained under his Patria Potestas, falls in with this 
widely extended conception of representation. 

The Patria Potestas seems to me the most 
probable source of a well-known English custom 
which has occasioned no little surprise to students 



222 EXPLANATIONS OF BOROUGH ENGLISH, lect. til 

of our law. ' Borough English,' under which the 
youngest son and not the eldest succeeds to the 
burgage-tenements of his father, has from time im- 
memorial being recognised as a widely diffused 
usage of which it is the duty of our Courts to take 
judicial notice, and many writers on our real property 
laws, from Littleton downwards, have attempted to 
account for it. Littleton thought he saw its origin 
in the tender age of the youngest son, who was not 
so well able to help himself as the rest of the 
brethren. Other authors, as Blackstone tells us, 
explained it by a supposed right of the Seigneur or 
lord, now very generally regarded as apocryphal, 
which raised a presumption of the eldest son's ille- 
gitimacy. Blackstone himself goes as far a -field as 
North-Eastern Asia for an explanation. He quotes 
from Duhalde the statement that the custom of 
descent to the youngest son prevails among the Tar- 
tars. * That nation/ he says, ' is composed totally 
of shepherds and herdsmen; and the elder sons, as 
soon as they are capable of leading a pastoral life, 
migrate from their father with a certain allotment 
of cattle, and go to seek a new habitation. The 
youngest son, therefore, who continues longest with 
the father, is naturally the heir of his house, the rest 
being already provided for. And thus we find that, 
among many other Northern nations, it was the 
custom for all the sons but one to migrate from the 



/ 

LEOT. YH. PRIMOGENITURE AND BOROUGH ENGLISH. 223 

father, which one now became his heir.' The expla- 
nation was really the best which could be given in 
Blackstone's day, but it was not necessary to go for 
it so far from home. It is a remarkable circumstance 
that an institution closely resembling Borough Eng- 
lish is found in the Laws of Wales, giving the rule of 
descent for all cultivating villeins. ' Cum fratres 
inter se dividant haereditatem,' says a rule of that 
portion of the Welsh Law which has survived in 
Latin ; 'junior debet habere tygdyn, i.e. aadificia 
patris sui, et octo acras de terra, si habuerint ' (L. 
Wall., vol. ii. p. 780). And, when the youngest son 
has had the paternal dwelling-house, eight acres of 
land and certain tools and utensils, the other sons are 
to divide what remains. It appears to me that the 
institution is founded on the same ideas as those 
which gave a preference to the Geilfine division ot 
the Celtic family. The home-staying, unemancipated 
son, still retained under Patria Potestas, is preferred 
to the others. If this be so, there is no room for the 
surprise which the custom of Borough English has 
excited, and which arises from contrasting it with the 
rule of Primogeniture. But the two institutions 
have a different origin. Primogeniture is not a 
natural outgrowth of the family. It is a political 
not a tribal institution, and comes to us not from 
the clansmen but from the Chief. But the rule oi 
Borough English, like the privileges of the Geilfine, 



224 PRIMOGENITURE AND BOROUGH ENGLISH, lect. yh. 

is closely connected with the ancient conception of 
the Family as linked together by Patria Potestas. 
Those who are most emphatically part of the Family 
when it is dissolved by the death of its head are 
preferred in the inheritance according to ideas which 
appear to have been once common to the primitive 
Romans, to the Irish and Welsh Celts, and to the 
original observers, whoever they were, of the English 
custom. 






t.ect. Tin. COMPARATIVE MYTHOLOGY. 22S 



LECTURE VIII. 

THE GROWTH AND DIFFUSION OF PRIMITIVE IDEAS. 

Mr. Tylor has justly observed that the true lesson 
of the new science of Comparative Mythology is the 
barrenness in primitive times of the faculty which we 
most associate with mental fertility, the Imagination. 
Comparative Jurisprudence, as might be expected 
from the natural stability of law and custom, yet 
more strongly suggests the same inference, and points 
to the fewness of ideas and the slowness of additions 
to the mental stock as among the most general cha- 
racteristics of mankind in its infancy. 

The fact that the generation of new ideas does not 
proceed in all states of society as rapidly as in that 
to which we belong, is only not familiar to us through 
our inveterate habit of confining our observation of 
human nature to a small portion of its phenomena. 
When we undertake to examine it, we are very apt 
to look exclusively at a part of Western Europe and 
perhaps of the American Continent. We constantly 
leave aside India, China, and the whole Mahometan 

Q 



226 IDEAS OF THE EAST. lect. veii. 

East. This limitation of our field of vision is per- 
fectly justifiable when we are occupied with the 
investigation of the laws of Progress. Progress is, in 
fact, the same thing as the continued production of 
new ideas, and we can only discover the law of this 
production by examining sequences of ideas where 
they are frequent and of considerable length. But 
the primitive condition of the progressive societies is 
best ascertained from the observable condition of 
those which are non-progressive ; and thus we leave 
a serious gap in our knowledge when we put aside 
the mental state of the millions upon millions of men 
who fill what we vaguely call the East as a pheno- 
menon of little interest and of no instructiveness. 
The fact is not unknown to most of us that, among 
these multitudes, Literature, Religion, and Art — or 
what corresponds to them — move always within a 
distinctly drawn circle of unchanging notions; but 
the fact that this condition of thought is rather the 
infancy of the human mind prolonged than a different 
maturity from that most familiar to us, is very 
seldom brought home to us with a clearness rendering 
it fruitful of instruction. 

I do not, indeed, deny that the difference between 
the East and the West, in respect of the different 
speed at which new ideas are produced, is only * 
difference of degree. There were new ideas produced 
in India even during the disastrous period just before 



lect. m SL0WXESS OF PROGRESS. 227 

the English entered it, and in the earlier ages this 
production must have been rapid. There must have 
been a series of ages during which the progress of 
China was very steadily maintained, and doubtless 
our assumption of the absolute immobility of the 
Chinese and other societies is in part the expression 
of our ignorance. Conversely, I question whether 
new ideas come into being in the West as rapidly 
as modern literature and conversation sometimes 
suggest. It cannot, indeed, be doubted that causes, 
unknown to the ancient world, lead among us to the 
multiplication of ideas. Among them are the ?iever- 
ceasing discovery of new facts of nature, inventions 
changing the circumstances and material conditions 
of life, and new rules of social conduct; the chief of 
this last class, and certainly the most powerful in the 
domain of law proper, I take to be the famous maxim 
that all institutions should be adapted to produce the 
greatest happiness of the greatest number. Never- 
theless, there are not a few signs that even conscious 
efforts to increase the number of ideas have a very 
limited success. Look at Poetry and Fiction. From 
time to time one mind endowed with the assemblage 
of qualities called genius makes a great and sudden 
addition to the combinations of thought, word and 
sound which it is the province of those arts to pro- 
duce ; yet as suddenly, after one or a few such efforts, 
the productive activity of both branches of invention 

<* 2 



228 LIMirS TO FERTILITY OF HUMAN MIND. lect. nn. 

ceases, and they settle down into imitativeness for 
perhaps a century at a time. An humbler example 
may be sought in rules of social habit. We speak of 
the caprices of Fashion ; yet, on examining them 
historically, we find them singularly limited, so much 
so, that we are sometimes tempted to regard Fashion 
as passing through cycles of form ever repeating 
themselves. There are, in fact, more natural limita- 
tions on the fertility of intellect than we always admit 
to ourselves, and these, reflected in bodies of men, 
translate themselves into that weariness of novelty 
which seems at intervals to overtake whole Western 
societies, including minds of every degree of informa- 
tion and cultivation. 

My present object is to point out some of the 
results of mental sterility at a time when society is in 
the stage which we have been considering. Then, 
the relations between man and man were summed up 
in kinship. The fundamental assumption was that 
all men, not united with you by blood, were your 
enemies or your slaves. Gradually the assumption 
became untrue in fact, and men, who were not blood 
relatives, became related to one another on terms of 
peace and mutual tolerance or mutual advantage. 
Yet no new ideas came into being exactly harmonis- 
ing with the new relation, nor was any new phrase- 
ology invented to express it. The new member of 
each group was spoken of as akin to it, was treated as 



lect. Tin. TRANSFORMATION OF IDEAS. 229 

akin to it, was thought of as akin to it. So little 
were ideas changed that, as we shall see, the very 
affections and emotions which the natural bond evoked 
were called forth in extraordinary strength by the arti- 
ficial tie. The clear apprehension of these facts throws 
light on several historical problems, and among them 
on some of Irish history. Yet they ought not greatly 
to surprise us, since, in a modified form, they make 
part of our everyday experience. Almost everybody 
can observe that, when new circumstances arise, we 
use our old ideas to bring them home to us ; it is 
only afterwards, and sometimes long afterwards, that 
our ideas are found to have changed. An English 
Court of Justice is in great part an engine for working 
out this process. New combinations of circumstance 
are constantly arising, but in the first instance they 
are exclusively interpreted according to old legal 
ideas. A little later lawyers admit that the old ideas 
are not quite what they were before the new circum- 
stances arose. 

The slow generation of ideas in ancient times may 
first be adduced as necessary to the explanation of 
that great family of Fictions which meet us on the 
threshold of history and historical jurisprudence. 
Specimens of these fictions may be collected on all 
sides from bodies of archaic custom or - rudimentary 
systems of law, but those most to our present purpose 
are fictitious assumptions of blood-relationship. Els*- 



230 FICTIONS OF CONSANGUINITY. iascx. vui 

where I have pointed out the strange conflict between 
belief or theory and what seems to us notorious fact, 
which is observable in early Roman and Hellenic 
society. i It may be affirmed of early commonwealths 
that their citizens considered all the groups in which 
they claimed membership to be founded on common 
lineage. What was obviously true of the Family was 
believed to be true first of the House, next of the 
Tribe, lastly of the State. And yet we find that, 
along with this belief, each community preserved 
records or traditions which distinctly showed that 
the fundamental assumption was false. Whether we 
look to the Greek States, or to Rome, or to the 
Teutonic aristocracies in Ditmarsh which furnished 
Niebuhr with so many valuable illustrations, or to 
the Celtic clan associations, or to that strange social 
organisation of the Sclavonic Russians and Poles 
which has only lately attracted notice, everywhere 
we discover traces of passages in their history when 
men of alien descent were admitted to, and amalga- 
mated with, the original brotherhood. Adverting to 
Rome singly, we perceive that the primary group, 
the Family, was being constantly adulterated by the 
practice of adoption, while stories seem to have been 
always current respecting the exotic extraction of one 
of the original Tribes, and concerning a large addition 
to the Houses made by one of the early Kings. The 
composition of the State uniformly assumed to be 



leci. Yin. ANCIENT IRISH FICTIONS. 231 

natural was nevertheless known to be in great mea- 
sure artificial.' (Ancient Law, pp. 129, 130.) The 
key to these singular phenomena has been recently 
sought in the ancient religions, and has been supposed 
to be found in the alleged universal practice of wor- 
shipping dead ancestors. Very striking illustrations of 
them are, however, supplied by the law and usage of 
Ireland after it had been Christianised for centuries, 
and long after any Eponymous progenitor can be 
conceived as worshipped. The Family, House, and 
Tribe of the Romans — and, so far as my knowledge 
extends, all the analogous divisions of Greek commu- 
nities — were distinguished by separate special names. 
But in the Brehon Law, the same word, Fine (or 
1 family '), is used for the Family as we ordinarily un- 
derstand it — that is, for the children of a living parent 
and their descendants — for the Sept or, in phrase of 
Indian law, the Joint Undivided Family, that is, the 
combined descendants of an ancestor long since dead — 
for the Tribe, which was the political unit of ancient 
Ireland, and even for the large Tribes in which the 
smaller units were sometimes absorbed. Nevertheless 
the Irish Family undoubtedly received additions 
through Adoption. The Sept, or larger group of 
kindred, had a definite place for strangers admitted 
to it on stated conditions, the Fine Taccair. The 
Tribe avowedly included a number of persons, mostly 
refugees from other Tribes, whose only connection 



TRIBAL ORIGIN OF GUILDS. mct. vm, 

with it was common allegiance to its Chief. Moreover 
the Tribe in its largest extension and considered a 
political as well as a social unit might have been 
absorbed with others in a Great or Arch Tribe, and 
here the sole source of the kinship still theoretically 
maintained is Conquest. Yet all these groups were 
in some sense or other Families. 

Nor does the artificiality solely consist in the ex- 
tension of the sphere of kinship to classes known to 
have been originally alien to the true brotherhood. 
An even more interesting example of it presents itself 
when the ideas of kinship and the phraseology proper 
to consanguinity are extended to associations which 
we should now contemplate as exclusively founded on 
contract, such as partnerships and guilds. There are 
no more interesting pages in Dr. Sullivan's Introduc- 
tion (pp. ccvi et seq.) than those in which he discusses 
the tribal origin of Guilds. He claims for the word 
itself a Celtic etymology, and he traces the institu- 
tion to the grazing partnerships common among the 
ancient Irish. However this may be, it is most 
instructive to find the same words used to describe 
bodies of co-partners, formed by contract, and bodies 
of co-heirs or co-parceners formed by common descent. 
Each assemblage of men seems to have been conceived 
as a Family. As regards Guilds, I certainly think / as 
I thought three years ago, that they have been much 
too confidently attributed to a relatively medern 



lect. vnr LONDON COMPANIES. 233 

origin ; and that many of them, and much which is 
common to all of them, may be suspected to have 
grown out of the primitive brotherhoods of co- villagers 
and kinsmen. The trading guilds which survive in 
our own country have undergone every sort of trans- 
mutation which can disguise their parentage. They 
are artificial to begin with, though the hereditary 
principle has a certain tendency to assert itself. They 
have long since relinquished the occupations which 
gave them a name. They mostly trace their privi- 
leges and constitution to some royal charter ; and 
kingly grants, real or fictitious, are the great cause 
of interruption in English History. Yet anybody 
who, with a knowledge of primitive law and history, 
examines the internal mechanism and proceedings of 
a London Company will see in many parts of them 
plain traces of the ancient brotherhood of kinsmen, 
' joint in food, worship, and estate ; ' and I suppose 
that the nearest approacli to an ancient tribal holding 
in Ireland is to be found in those confiscated lands 
which are now the property of several of these 
Companies. 

The early history of Contract, I need scarcely tell 
you, is almost exclusively to be sought in the history 
of Roman law. Some years ago I pointed to the 
entanglement which primitive Roman institutions 
disclose between the conveyance of property and 
the contract of sale. Let me now observe that 



234 ORIGIN OP PARTNERSHIP lect vnx 

one or two others of the great Roman contracts 
appear to me, when closely examined, to afford evi- 
dence of their having been gradually evolved through 
changes in the mechanism of primitive society. You 
have seen how brotherhoods of kinsmen transform 
themselves into alliances between persons whom we 
can only call partners, but still at first sight the 
link is missing which would enable us to say that 
here we have the beginning of the contract of part- 
nership. Look, however, at the peculiar contract 
called by the Romans ' societas omnium ( or universo- 
rum) bonorum.' It is commonly translated c partner- 
ship with unlimited liability/ and there is no doubt 
that the elder form of partnership has had great 
effect on the newer form. But you will find that, in 
the societas omnium bonorum, not only were all the 
liabilities of the partnership the liabilities of the se- 
veral partners, but the whole of the property of each 
partner was brought into the common stock and was 
enjoyed as a common fund. No such arrangement 
as this is known in the modern world as the result of 
ordinary agreement, though in some countries it may 
be the effect of marriage. It appears to me that we 
are carried back to the joint brotherhoods of primitive 
society, and that their development must have given 
rise to the contract before us. Let us turn again to 
the contract of Mandatum or Agency. The only 
complete representation of one man by another whicb 



lkjt. Tin. THE ANCIENT IRISH CHINCH. 235 

the Roman law allowed was the representation of the 
Paterfamilias by the son or slave under his power. 
The representation of the Principal by the Agent is 
much more incomplete, and it seems to me probable 
that we have in it a shadow of that thorough co- 
alescence between two individuals which was only 
possible anciently when they belonged to the same 
family. 

The institutions which I have taken as my 
examples are institutions of indigenous growth, deve- 
loped probably more or less within all ancient societies 
by the expansion of the notion of kinship. But it 
sometimes happens that a wholly foreign institution 
is introduced from without into a society based upon 
assumed consanguinity, and then it is most instruc- 
tive to observe how closely, in such a case, material 
which antecedently we should think likely to oppose 
the most stubborn resistance to the infiltration of 
tribal ideas assimilates itself nevertheless to the model 
of a Family or Tribe. You may be aware that the 
ancient Irish Church has long been a puzzle to eccle- 
siastical historians. There are difficulties suggested 
by it on which I do not pretend to throw any new 
light, nor, indeed, could they conveniently be con- 
sidered here. Among perplexities of this class are 
the extraordinary multiplication of bishops and their 
dependence, apparently an almost servile dependence, 
on the religious houses to which they were attached. 



238 THE AXCIEXT IRISH CHURCH. lect. vui. 

But the relation of the various ecclesiastical bodies to 
one another was undoubtedly of the nature of tribal 
relation. The Brehon law seems to me fully to con- 
firm the account of the matter given, from the purely 
ecclesiastical literature, by Dr. Todd, in the Intro- 
duction to his Life of St. Patrick. One of the great 
Irish or Scotic Missionaries, who afterwards nearly 
invariably reappears as a Saint, obtains a grant of 
lands from some chieftain or tribe in Ireland or Celtic 
Britain, and founds a monastery there, or it may be 
that the founder of the religious house is already 
himself the chieftain of a tribe. The House becomes 
the parent of others, which again may in their turn 
throw out minor religious establishments, at once 
monastic and missionary. The words signifying 
' family ' or 4 tribe ' and ' kinship ' are applied to all 
the religious bodies created by this process. Each 
monastic house, with its monks and bishops, consti- 
tutes a 'family' or 'tribe ;' and its secular or servile 
dependants appear to be sometimes included under 
the name. The same appellation is given to the col- 
lective assemblage of religious houses formed by the 
parent monastery and the various churches or mon- 
astic bodies sprung from it. These make up together 
the 'tribe of the saint,' but this last expression is 
not exclusively employed with this particular mean- 
ing. The abbot of the parent house and all the 
abbots of the minor houses are the ' comharbas ' or 



lect. Tin. GROUPS OF RELIGIOUS HOUSES. 237 

co-heirs of the saint, and in yet another sense the 
4 family ' or l tribe ' of the saint means his actual 
tribesmen or blood-relatives. Iona, or Hy, was, as 
you know, the famous religious house founded by St. 
Oolumba near the coast of the newer Scotia. 4 The 
Abbot of Hy,' says Dr. Todd, 'or Co-arb of Coluniba, 
was the common head of Durrow, Kells, Swords, 
Prumcliff, and other houses in Ireland founded by 
Columba, as well as of the parent monastery of Hy, 
and the " family of Colum-kille " was composed of 
the congregations or inmates and dependants of all 
those monasteries. The families, therefore, of such 
monasteries as Clonmacnois or Durrow might muster 
a very respectable body of fighting men.' Let me 
add, that there is very good evidence that these 
' families of the saints ' were occasionally engaged in 
sanguinary little wars. But, ' in general ' (I now 
quote again from Dr. Todd), 'the u family " meant 
only the monks or religious of the house.' 

It will be obvious to you that this application of 
the same name to all these complicated sets of rela- 
tions is every now and then extremely perplexing, 
but the key to the difficulty is the conception of the 
kindred branching off in successive generations from 
the common stock, planting themselves occasionally 
at a distance, but never altogether breaking the bond 
which connected them with their original family and 
chief. Nothing, let me observe, can be more curious 



238 THE FAMILY OF THE SAINT. lect. viu. 

tlian the way in which, throughout these artificial 
structures, the original natural principle upon which 
they were modelled struggles to assert itself at the 
expense of the imitative system. In all the more 
modern guilds, membership always tended to become 
hereditary, and here we have the Brehon law striving 
to secure a preference, in elections to the Abbacy, to 
the actual blood -relatives of the sainted founder. 
The ecclesiastical rule, we know, required election by 
the monks, but the Corus Bescna declares that, on 
a vacancy, the c family of the saint ' (which here 
means the founder's sept), if there be a qualified 
monk among them, ought to be preferred in elections 
to the Abbacy — ' though there be but a psalm-singer 
of them, if he be fit, he shall have it.' And it pro- 
ceeds to say that, if no relative or tribesman of the 
saint be qualified, the Abbacy shall go to some mem- 
ber of the tribe which originally granted the land. 

A very modern example of this plasticity of the 
notion of kinship has recently been brought to my 
notice. The co- villagers of an Indian village call 
themselves brothers, although, as I have frequently 
observed, the composition of the community is often 
artificial and its origin very miscellaneous. The 
appellation, at the same time, is distinctly more than 
a mere word. Now, some of the Christian mission- 
aries have recently tried an experiment which pro- 
mises to have much success, and have planted in vil- 



KECT. mi. SPIRITUAL RELATIONSHIP. 2S9 

lages converts collected from all sorts of diffe.ent 
regions. Yet these persons, as I am informed, fall 
into a ' brotherhood ' quite as easily and talk the 
language and assume the habits appropriate to it 
quite as naturally as if they and their forefathers had 
been members from time immemorial of this pecu- 
liarly Indian association, the village -community. 

There is, however, another set of phenomena 
which belong to the same class, but which seem to 
me to have been much misunderstood. AVhen men, 
under the influence of the cast of thought we are dis- 
cussing, are placed in circumstances which naturally 
breed affection and sympathy, or when they are placed 
in a relation which they are taught to consider espe- 
cially sacred, not only their words and ideas but their 
feelings, emotions, and prejudices mould themselves 
on the pattern of those which naturally result from 
consanguinity. We have, I believe, a striking ex 
ample of the process in the history of the Christian 
Church. You know, I dare say, that Spiritual Rela- 
tionship or the tie between a sponsor and a baptized 
person, or between sponsors, or even between the 
sponsors and the family of the baptized, became by 
degrees the source of a great number of prohibitions 
against intermarriage, which stood on the same level 
with those based on affinity, and almost with those 
founded on consanguinity. The earliest evidence we 
have that this order of ideas was stirring the Chris- 



240 SPIRITUAL RELATIONSHIP. lect. Yin. 

tian community is, I believe, a Constitution of Jus- 
tinian in the Code (v. 4. 26), which forbids the 
marriage of the sponsor with the baptized ; but the 
prohibitions were rapidly extended by the various 
authorities which contributed to the Canon law, and 
were finally regulated and somewhat narrowed by 
the Council of Trent. Nowadavs, I am told that 
they merely survive formally in the Roman Catholic 
Church, and that dispensations relaxing them are 
obtainable as of course. The explanation of the 
system by technical theologians is that it is based on 
the wish to give a peculiar sacredness to the bond 
created by sponsorship, and this I believe to be a true 
account of its origin. But 1 do not believe that 
Spiritual Relationship, a structure based on contract, 
would in every stage of thought have assimilated 
itself to natural relationship. The system developed 
itself just when Christianiry was being diffused among 
races whose social organisation was founded on kin- 
ship, and I cannot but think that their ideas reacted 
on the Church. With such races a very sacred tie 
was necessarily of the nature of a family tie, and 
carried with it the same associations and the same 
order of feeling. I do not, therefore, consider that 
such terms as Gossipred, Godfather, Godson — to which 
there are counterparts in several languages — were 
created by the theory of Spiritual Relationship, but 



lect. tit FOSTERAGE. 241 

rather that they mark the process by which that 
theory was formed. 

It seems to me accordingly in the highest degree 
natural that Spiritual Relationship, when introduced 
into a tribal society like that of the ancient Irish 
should closely assimilate itself to blood-relationship 
We know in fact that it did so, and that the stria- 
gency of the relation and the warmth of the affections 
which it produced moved the scorn, the wrath, and 
the astonishment of several generations of English 
observers, deriving their ideas from a social order now 
become very unlike that of Ireland. But by the side 
of Gossipred, or Spiritual Relationship, there stood 
another much more primitive institution, which was 
extraordinarily developed among the ancient Irish, 
though not at all peculiar to them. This was Foster- 
age, the giving and taking of children for nurture. 
Of the reasons why this practice, now known to 
have been widely diffused among Aryan communi- 
ties, should have had an exceptional importance and 
popularity in Ireland, we can say little more than 
that they probably belong to the accidents of Irish 
history and of Irish social life. But of the fact there 
is no doubt. An entire sub-tract in the Senchus Mor 
is devoted to the Law of Fosterage, and sets out with 
the greatest minuteness the rights and duties attach- 
ing to all parties when the children of another family 
were received for nurture and education. It is 

ft 



242 LITERARY FOSTERAGE. xect. m 

classed, with Gossipred, as one of the anomalies or 
curses of Ireland by all her English critics, from 
Giraldus Cambrensis in the twelfth century to 
Spenser in the sixteenth. It seemed to them mon- 
strous that the same mother's milk should produce 
in Ireland the same close affections as did common pa- 
ternity in their own country. The true explanation 
was one which is only now dawning on us. It was, 
that Fosterage was an institution which, though arti- 
ficial in its commencements, was natural in its opera- 
tions; and that the relation of foster-parent and 
foster-child tended, in that stage of feeling, to become 
indistinguishable from the relation of father and son. 
The form of Fosterage which has most interest 
for the modern enquirer is called by the Translators 
of the Brehon tracts Literary Fosterage. It was an 
institution nearly connected with the existence of the 
Brehon Law Schools, and it consists of the various 
relations established between the Brehon teacher and 
the pupils he received into his house for instruction 
in the Brehon lore. However it may surprise us 
that the connection between Schoolmaster and Pupil 
was regarded as peculiarly sacred by the ancient Irish, 
and as closely resembling natural fatherhood, the Bre- 
hon tracts leave no room for doubt on the point. It is 
expressly laid down that it created the same Patria 
Potestas as actual paternity; and the literary foster- 
father, though he teaches gratuitously, has a claim 



lect. vm. LITERARY FOSTERAGE IN INDIA. 243 

through life upon portions of the property of the 
literary foster-son. Thus the Brehon with his pupils 
constituted not a school in our sense but a true 
family. While the ordinary foster-father was bound 
by the law to give education of some kind to his 
foster-children — to the sons of chiefs instruction 
in riding, shooting with the bow, swimming, and 
chess-playing, and instruction to their daughters in 
sewing, cutting out, and embroidery — the Brehon 
trained his foster-sons in learning of the highest dig- 
nity, the lore of the chief literary profession. He took 
payment, but it was the law which settled it for him. 
It was part of his status, and not the result of a 
bargain. 

There are some faint traces of Fosterage in the 
Hindoo law, but substantially it has dropped out of 
the system. The vestiges of Literary Fosterage are, 
however, tolerably abundant and very plain. Accord- 
ing to the general custom of India, the Brahmin 
teacher of Brahmin pupils receives no payment for his 
services, but the Hindoo law repeatedly reserves to 
him a remote succession to their property. In each 
of four Brahminical law-tracts of great authority, the 
Vyavahara Mayukha, the Daya-Bhaga, the Mitak- 
shara, and the Daya-Krama-Sangraha, the same 
ancient text is quoted (sometimes but not always 
attributed to Manu), which is to the effect that ' If 
there be no male issue the nearest kinsman inherits; 

r2 



244 ORIGIN OF CASTE. LEOT. 7m. 

or in default of kindred, the preceptor, or failing him 
the disciple.' One commentator explains that the 
preceptor is the instructor in the Vedas, and another 
describes him as the person who affords religious 
instruction to his pupil after investing him with 
the Brahmin ical thread. These writers add that if 
neither teacher nor pupil have survived the deceased 
his fellow- student will succeed. Modern cases turn- 
ing on these peculiar rules of succession may be 
found in the Anglo- Indian Law Reports. 

We are thus brought face to face with a problem 
which possesses interest in proportion to its difficulty 
— the problem of the origin of Castes. I cannot 
profess to do more than approach it, but the oppor- 
tunity of throwing even the least light on a subject 
so dark ought not to be neglected. First let me say 
that, among the comparatively few English writers 
who have noticed the Brehon lawyers, some have 
loosely described them as a caste. But this is an im- 
proper use of the word, though it is one not uncom- 
mon in India. As regards the position of the Brehons 
in very early times, the evidence of the Irish re- 
cords is consistent with the testimony of Caesar as 
to the literary class of the Gallic Celts, and seems 
to show that anyone who went through a particular 
training might become a Brehon. When, however, 
Ireland began to be examined by English observers^ 
it is plain that the art and knowledge of the Brehon 



lect. Yin. TRADES CALLED CASTES. 246 

had become hereditary in certain families who were 
attached to or dependent on the Chiefs of particular 
tribes. There is nothing remarkable in this change, 
which has obviously occurred with a vast number of 
trades and professions in India, now popularly called 
castes. In societies of an archaic type, a particular 
craft or kind of knowledge becomes in time an heredi- 
tary profession of families, almost as a matter of course. 
The difficulty wdth a native of India, unsophisticated 
by English ideas, is not to find a reason why a son 
should succeed to the learning of his father, and 
consequently to his office and duties; his difficulty 
would rather be to explain to himself why it should 
not be so, and how the public interests could be con- 
sulted by any other arrangement. The States governed 
by native Indian Princes are becoming a good deal 
Anglicised, but still in them it is the practically uni- 
versal rule that office is hereditary. We do not, how- 
ever, thus arrive at a complete account of the growth 
of those castes which are definite sections of great 
populations One only of these castes really survives 
in India, that of the Brahmins, and it is strongly sus- 
pected that the whole literary theory of Caste, which is 
of Brahmin origin, is based on the existence of the 
Brahmin caste alone. Now, the tendency of knowledge 
to become hereditary is, by itself, consistent with a 
great variety of religious and literary cultivation; 
but, as a fact, the Brahmins of India are a remarkably 



246 ORIGIN OF TRUE CASTE. lect. vni, 

homogeneous class, admitting (though no doubt with 
considerable local qualifications) a general brotherhood 
of all members of the order. 

While, then, I cannot say that our scanty in- 
formation respecting changes in the status of the Bre- 
hon lawyers helps us much towards a comprehension 
of the beginnings of Caste in the true sense, I certainly 
think that we learn something more than we knew 
before from the references in the Brehon tracts to 
Literary Fosterage. They appear to me to give a 
new emphasis and point to the rules of Hindoo Law 
respecting the remote succession of the 'spiritual 
preceptor ' to the property of families. It seems as 
if in the most ancient state of both systems Literary 
or Religious fatherhood had been closely assimilated 
to actual fatherhood. Under these circumstances, if 
great schools of Yedaic learning existed in India in 
very ancient times, as we have strong reason to think 
they did, the relation between Teacher and Pupil 
would closely follow and imitate the relation between 
father and son. A great profession would thus be 
formed, with stores of common knowledge ; but the 
tie between the members would not be purely in- 
tellectual; it would from the first be conceived as of 
the nature of kinship. Such a system, as the old 
ideas decayed, would tend infallibly to become one of 
real consanguinity. The aptitude for sacred know- 
ledge would come to be thought to run in the blood 



LEcr. vm. NORMANS SETTLED IN IRELAND. 247 

of sons whose fathers had been instructed in it, and 
none but such sons would be received into the schools. 
A Caste would thus be formed, in the eyes of its 
members the type of all Castes. 

We have thus strong reason for thinking that so- 
cieties still under the influence of primitive thought 
labour under a certain incapacity for regarding men, 
grouped together by virtue of any institutions what- 
soever, as connected otherwise than through blood - 
relationship. We find that, through this barrenness of 
conception, they are apt to extend the notion of con- 
sanguinity and the language beginning in it to insti- 
tutions of their own not really founded on community 
of blood, and even to institutions of foreign origin. 
We find also that the association between institutions 
arising from true kinship and institutions based on 
artificial kinship is sometimes so strong, that the 
emotions which they respectively call forth are prac- 
tically indistinguishable. These phenomena of early 
thought and feeling appear to me amply to account 
for some facts of Irish history which nearly all Eng- 
lish writers on Ireland have noticed with extreme 
surprise or indignation. The expressions of Sir John 
Davis, while stating that many of the early Anglo- 
Norman adventurers settled in Ireland became in 
time pure Irish chieftains, reflect the violent astonish- 
ment and anger which the transformation excited in 
Englishmen. c The English Colonists did embrace 



248 INVECTIVE OF DAVIS. lect. vm 

and use the Irish, customs, after they had rejected the 
Civil and Honourable Laws and Customs of England, 
whereby they became degenerate and metamorphosed 
like Nebuchadnezzar, who, although he had the face 
of a man, had the heart of a beast ; or like those who 
had drunk of Circe's cup and were turned into very 
beasts, and yet took such pleasure in their beastly 
manner of life as they would not return to their 
shape of men again ; insomuch as within less time 
than the age of a man, they had no marks or differ- 
ence left among them of that noble nation from which 
they were descended.' The fact, stated in this bitter 
language, is not especially marvellous. We have 
seen the general complexion of Irish society giving 
its colour to institutions of all sorts — associations of 
kinsmen shading off into assemblages of partners and 
guild-brothers — foster parentage, spiritual parentage, 
and preceptorship taking their hue from natural pater- 
nity — ecclesiastical organisation blending with tribal 
organisation. The Anglo-Norman captain who had 
thought to conquer for himself an Irish signory passed 
insensibly in the same way into the chieftain of an 
Irish tribe. The dependants who surrounded him 
did not possibly draw any clear distinction between 
the actual depositary of power and the natural deposi- 
tary of power, and, as the contagiousness of ideas is 
in proportion to their fewness, it is intelligible that 
he too was affected by the mental atmosphere in 



lect. m ANGLO-NORMANS IN IRELAND. 240 

which he lived. Nor were other motives wanting. 
The extreme poverty and constant distractions of 
Ireland did not prevent an extraordinary amount of 
the pride of authority, of the pride of birth and 
even of the pride of wealth from centring in the 
dignity of an Irish Chief. 



250 THE MANUSCRIPT OF GAIUS. lbct. i* 



LECTURE IX. 

THE PRIMITIVE FORMS OF LEGAL REMEDIES. 
I. 

I stated on a former occasion (Lecture I. p. 8) that 
the branch of law which we now call the Law of 
Distress occupies the greatest part of the largest 
Brehon law-tract, the Senchus Mor. The importance 
thus given to Distress is a fact of much significance, 
and in this and the following Lecture I propose to 
discuss the questions it raises and the conclusions it 
suggests. 

The value of the precious discovery made by 
Niebuhr, when he disinterred in 1816 the manuscript 
of Gaius, does not solely arise from the new light 
which was at once thrown on the beginnings of the 
legal system which is the fountain of the greatest 
part of civilised jurisprudence. There are portions 
of the treatise then restored to the world which 
afford us glimpses of something older than law it- 
self, and which enable us to connect with law the 
practices dictated to barbarous men by impulses 
which it has become the prime office of all law to 



lect. ix. LEX AKD LEGIS ACTIO. 251 

control. At the head of the passages in the work 
of Gaius which allow the mind's eye to penetrate 
some little way into the chaos out of which social 
order sprang, I place the fragmentary and imper- 
fect account, given near the commencement of the 
Fourth Book, of the old Legis Actiones, which in the 
age of Gaius himself had ceased to have more than 
an historical and antiquarian interest. 

Legis Actio, of which the exact meaning does not 
seem to have been known to Gaius, may be conjec- 
tured to have been the substantive form of the verbal 
expression, legem or lege agere, and to have been equi- 
valent to what we now call Procedure. It has been 
several times observed that among the Legis Actiones 
are included several proceedings which are not of the 
nature of Actions or Suits, but are rather modes of 
executing decrees. The fact seems to be that, by a 
course of change which may be traced in the history 
of Roman law, one portion, ' Actio/ of the venerable 
phrase ' Legis Actio ' has been gradually disjoined 
from the rest, and has come to denote that stage of 
the administration of justice which is directly con- 
ducted by the Court, together, in some judicial sys- 
tems, with the stage immediately preceding it. I 
suppose that originally lex, used of the assumed writ- 
ten basis of Roman law, and legis actio, corresponded 
roughly to what many centuries afterwards were 
called Substantive and Adjective Law, the law de- 



252 THE LEGIS ACTIO SACRAMENTI. lect. lx. 

claring rights and duties and the rules according to 
which the law declaring rights and duties is adminis- 
tered. On the expression just mentioned, Adjective 
Law, with which Bentham and his school have fami- 
liarised us, I will make a remark which applies to 
much in the phraseology and classifications of the 
Analytical Jurists, that it is correct and convenient 
according to the ideas of their day, but that, if used 
of very old law, it is apt to lead to an historical mis- 
conception. It would not be untrue to assert that, 
in one stage of human affairs, rights and duties are 
rather the adjective of procedure than procedure a 
mere appendage to rights and duties. There have 
been times when the real difficulty lay, not in conceiv- 
ing what a man was entitled to, but in obtaining it ; 
so that the method, violent or legal, by which an end 
was obtained was of more consequence than the 
nature of the end itself. As a fact, it is only in the 
most recent times or in the most highly developed 
legal systems that remedies have lost importance in 
comparison with rights and have ceased to affect 
them deeply and variously. 

The first and in many respects the most interest- 
ing of these ancient modes of proceeding is the Legis 
Actio Sacramenti, the undoubted parent of all the 
Roman Actions, and consequently of most of the 
civil remedies now in use in the world. Several 
years ago I pointed out (Ancient Laiv, pp. 376, 377) 



lect. ix. ANCIENT DRAMATISATIONS. 253 

that the technical formalities appeared plainly, upon 
inspection, to be a dramatisation of the Origin of 
Justice. ' Two armed men,' I said, c are wrangling 
about some disputed property. The Praetor, vir 
pietate gravis, happens to be going by and inter- 
poses to stop the contest. The disputants state their 
case to him, and agree that he shall arbitrate between 
them, it being arranged that the loser, besides re- 
signing the subject of the quarrel, shall pay a sum of 
money to the umpire as remuneration for his trouble 
and loss of time.' l This interpretation,' I then added, 
* would be less plausible than it is, were it not that, 
by a surprising coincidence, the ceremony described 
by Gaius as the imperative course of proceeding in 
a Legis Actio is substantially the same with one of the 
two subjects which the God Hephaestus is described 
by Homer as moulding into the First Compartment 
of the Shield of Achilles.' Since these passages were 
written, the labours of more recent enquirers enable 
us to class this judicial picture of the origin of one 
great institution, Civil Justice, with other pictorial or 
dramatic representations of forgotten practices which, 
in various parts of the world, survive in the forms at- 
tending institutions of at least equal importance. It 
may be seen, for example, from Mr. McLennan's work 
on c Primitive Marriage,' that a large part of mankind 
still simulate in their marriage ceremonies the carrying 
off the bride by violence, and thus preserve the memory 



254 SACRAMENTAL ACTION. lect. ix. 

of the reign of force which, at all events as between 
tribe and tribe, preceded everywhere the reign of 
law. It is not at the same time to be supposed that 
these long-descended dramas imply or ever implied 
any disrespect for the ii stitutions with which they 
are associated. In all probability they intentionally 
commemorate not the evil but the remedy for the 
evil : and, until they degenerate into meaningless 
usages, they are enacted, not in honour of brute force, 
but in honour of the institutions which superseded it, 
Marriage and Civil Justice . 

Almost every gesture and almost every set of 
formal words in the Legis Actio Sacramenti sym- 
bolise something which, in some part of the world 
or another, in some Aryan society or another, has 
developed into an important institution. The 
claimant places his hand on the slave or other 
subject of dispute, and this grasp of the thing 
claimed, which is reproduced in the corresponding 
procedure of the ancient Germans and which, from 
them, was continued in various modified forms far 
down into the Middle Ages, is an early example 
of that Demand before action on which all civi- 
lised systems of law insist. The wand, which the 
claimant held in his hand, is stated by Gaius to 
have represented a spear, and the spear, the emblem 
of the strong man armed, served as the symbol of 
property held absolutely and against the world, not 



LBOT. IX. SACKAMENTAL ACTION. 256 

only in the Roman but in several other Western 
societies. The proceedings included a series of as- 
sertions and reassertions of right by the parties, and 
this formal dialogue was the parent of the Art of 
Pleading. The quarrel between plaintiff and defend- 
ant, which was a mere pretence among the Romans, 
long remained a reality in other societies, and, though 
its theory was altered, it survived in the Wager of 
Battle which, as an English institution, was only 
finally abolished in our fathers' day. The interposi- 
tion of the Praetor and the acceptance of his media- 
tion expanded into the Administration of Justice in 
the Roman State, one of the most powerful of instru- 
mentalities in the historical transformation of the 
civilised world. The disputants staked a sum of 
money — the Sacramentum, from which the proceed- 
ings took their name — on the merits of their quarrel, 
and the stake went into the public exchequer. The 
money thus wagered, which appears in a singularly 
large number of archaic legal systems, is the earliest 
representative of those Court-fees which have been a 
more considerable power in legal history than histo- 
rians of law are altogether inclined to admit. The 
very spirit in which a Legis Actio was conducted was 
that which, in the eyes of laymen, has been most cha- 
racteristic of lawyers in all historical times. If, says 
Gaius, you sued by Legis Actio for injury to your 
vines, and called them vines, you would fail ; you 



256 THE CONDICTION. lect. ix 

must call them trees, because the text of the Twelve 
Tables spoke only of trees. The ancient collection 
of Teutonic legal formulas, known as the Malberg 
Gloss, contains provisions of precisely the same cha- 
racter. Tf you sue for a bull, you will miscarry if 
you describe him as a bull ; you must give him his 
ancient juridical designation of 'leader of the herd.' 
You must call the forefinger the ' arrow '-finger, the 
goat the ' browser upon leeks/ There are lawyers 
alive who can recollect when the English system of 
Special Pleading, now just expiring, was applied upon 
principles not remotely akin to these and historically 
descended from them. 

The description given by Gaius of the Legis Actio 
Sacramenti is followed by a lacuna in the manuscript. 
It was once occupied with an account of the Judicis 
Postulatio, which was evidently a modification of 
the older Sacramental Action by which this ancient 
remedy was adapted to a particular class of cases. 
The text of the treatise begins again with a descrip- 
tion of the Condictio, which is said by Gaius to have 
been created, but which is believed to have been only 
regulated, by two Roman statutes of the sixth century 
before Christ — the Lex Silia and the Lex Calpurnia. 
The Condictio, which afterwards developed into one 
of the most useful of the Roman actions, originally 
derived its name from a notice which the plaintiff 
gave the defendant to appear before the Praetor in 



lect. n. THE PIGNORIS CAPIO. 257 

thirty days, in order that a Judex or referee might be 
nominated; and immediately (as I myself think) on 
this notice being given, the parties entered into a 
1 sponsio ' and l restipulatio,' that is, they laid a formal 
wager (distinct from the stake called Sacramentum) 
on the justice of their respective contentions. The 
sum thus staked, which was always equal to a third 
of the amount in dispute, went in the end to the 
successful litigant, and not, like the Sacramentum, to 
the State. Lawyers w ondered, Gaius tells us, that 
«mch an action should be needed when property could 
have been recovered by the older and unmodified 
procedure. Many technical answers to this question 
have been given by modern commentators on Roman 
law, but we will see whether a better explanation of it 
cannot be obtained by approaching it from another side. 
Gaius, leaving the Condictio, proceeds to discuss 
two of the Legis Actiones, the Manus Injectio and 
the Pignoris Capio, which cannot be made to square 
in any way with our modern conception of an action. 
The Manus Injectio is expressly stated to have been 
originally the Roman mode of execution against the 
person of a judgment debtor. It has considerable 
historical interest, for it was undoubtedly the instru- 
ment of the cruelties practised by the Roman aris- 
tocracy on their defaulting plebeian debtors, and thus 
it gave the first impetus to a series of popular move- 
ments which affected the whole history of the Roman 

s 



258 THE PIGNORIS CAPIO. lect. ix. 

Commonwealth The Pignoris Capio also, possibly 
under a slightly altered name, was a mode of execution 
in later times against property after decree ; but this 
was not its original purpose as a Legis Actio. It was 
at first a wholly extra-judicial proceeding. The per- 
son who proceeded by it seized in certain cases the 
goods of a fellow-citizen, against whom he had a 
claim, but against whom he had not instituted a suit. 
The power of seizure could be exercised by soldiers 
against public officers bound to supply them with 
pay, horse, or forage; and it could also be resorted to 
by the seller of a beast for sacrifice against a default- 
ing purchaser. It was thus confined to claims of 
great urgency or of highly sacred obligation ; but it 
was afterwards extended to demands for overdue ar- 
rears of public revenue. I am indebted to Mr. Poste 
for the observation that the ideal institutions of 
Plato's Laws include something strongly resembling 
the Eoman Pignoris Capio; and here again it is a 
remedy for breach of public duties connected with 
military service or religious observance. 

I take the Pignoris Capio as the immediate starting- 
point of all which I am about to say on the subject 
of Ancient Civil Procedure. First of all let us ask 
whether Gaius himself gives us any hint of its mean- 
ing and significance in the primitive Roman system. 
The clue is slender, but it seems to me sufficiently 
traceable in the statement that the Pignoris Capio 



lect. ix. ANTIQUITY OF WAGERING. 259 

could be resorted to in the absence of the Praetor and 
generally in that of the person under liability, and 
also that it might be carried out even when the Courts 
were not sitting. 

Let us go back for a moment to the parent Legis 
Actio — the L. A. Sacramenti. Its venerable forms 
presuppose a quarrel and celebrate the mode of 
settling it. It is a passing arbitrator whose interpo- 
sition is simulated by the Praetor. But suppose there 
is no arbitrator at hand. What expedient for averting 
bloodshed remains, and is any such expedient reflected 
in that ancient procedure which, by the fact of its ex- 
istence, implies that the shedding of blood has some- 
how been prevented? 

I dare say I shall at the outset appear to be making 
a trivial remark when I say that one method of 
gaining the object is to lay a wager. Even now this 
is one of the commonest ways of postponing a dispute 
as to a matter of fact, and the truth is that the 
tendency to bet upon results lies extremely deep in 
human nature, and has grown up with it from its 
remote infancy. It is not everybody who, when his 
blood is hot, will submit to have a quarrel referred 
to a third person present, much less to a third person 
absent; but he will constantly do so, if he lays a 
wager on it, and if, besides being found in the right, 
he has a chance of receiving the amount staked. And 
this I suppose — differing, I own, from several high 

b 2 



260 SEIZURE OP GOODS. lect. ix 

authorities — to be the true significance of the Sponsio 
and Restipulatio, which we know to have been of the 
essence of the ancient Roman Condictio, and of the 
agreement to appear before the Praetor in thirty days. 
The Legis Actio Sacramenti assumes that the quarrel 
is at once referred to a present arbitrator; the Con- 
dictio that the reference is to the decision of an arbi- 
trator after thirty days' interval, but meantime the 
parties have entered into a separate wager on the 
merits of their dispute. We know that the liability 
to an independent penalty attached to the suitor by 
Condictio even when it had become one of the most 
important Roman actions, and that it was still exacted 
in the age of Cicero. 

There is yet another primitive contrivance by 
which, in the absence of a present arbitrator, a quarrei 
may be prevented from issuing in bloodshed. The 
claimant willing to go to arbitration may, in the ab- 
sence of his adversary, or if he be the stronger, in his 
presence, take forcible possession of his moveable pro- 
perty and detain it till he too submits. I believe this 
to have been the true primitive office of the Pignoris 
Capio, though the full evidence of my opinion will not 
be before you till I have tracked the same institution 
through the twilight of other legal systems. Among 
the Romans, even at the date of the Twelve Tables, 
it had become (to employ Mr. Tylor's phrase) a mere 
survival, confined to cases when the denial of justice 



leot. n. DISTRAINT OF GOODS. 2ftl 

was condemned by superstition or by a sense of the 
sternest public emergency; and this was a consequence 
of the exceptionally rapid development of Roman 
law and procedure, and of the exceptionally early 
date at which the Roman tribunals became the organs 
of the national sovereignty. You will see hereafter 
how much reason there is for thinking that the pro- 
gress of most societies towards a complete adminis- 
tration of justice was slow and gradual, and that the 
Commonwealth at first interfered through its various 
organs rather to keep order and see fair play in 
quarrels than took them, as it now does always and 
everywhere, into its own hands. To this period, long 
forgotten among the Romans, those peculiar rules 
pointed back which survived along with the Pignoris 
Capio, and which provided for its exercise out of 
court and during the judicial vacation. 

I turn to the Teutonic societies for vestiges of a 
practice similar to that which the Romans called 
Pignoris Capio. They seem to be quite unmistake- 
able in that portion of our own English law which is 
concerned with the power of Distraint or Distress 
and with the connected legal remedy known as Re- 
plevin. The examples of the right to distrain another 
man's property which are most familiar to you are, 
I dare say, the landlord's right to seize the goods of 
his tenant for unpaid rent, and the right of the lawful 
possessor of land to take and impound stray beasts 



262 DISTRESS FOR RENT. lect. ix, 

which are damaging his crops or soil. The process 
by which the latter right is made effectual retains far 
more of the ancient institution than does distress 
for rent. For the peculiar power of the landlord to 
distrain for rent, while it remains an extrajudicial 
remedy, has been converted into a complete remedy 
of its kind by a series of statutes comparatively 
modern. It has always, however, been the theory 
of the most learned English lawyers that distress 
is in principle an incomplete remedy; its primary 
object is to compel the person against whom it is 
properly employed to make satisfaction. But goods 
distrained for rent are nowadays not merely held 
as a security for the landlord's claim ; they are ul- 
timately put up for sale with certain prescribed 
formalities, the landlord is paid out of the pro- 
ceeds, and the overplus is returned to the tenant. 
Thus the proceeding has become merely a special 
method by which payment of rent, and certain other 
payments which are placed on the same footing, are 
enforced without the help of a Court of Justice. But 
the distraint of cattle for damage still retains a variety 
of archaic features. It is not a complete remedy. 
The taker merely keeps the cattle until satisfaction 
is made to him for the injury, or till they are returned 
by him on an engagement to contest the right to 
distrain in an action of Keplevin. 

The practice of Distress — of taking nams, a word 



user. ix. COURSE OF A DISTRESS. 263 

preserved in the once famous law-term withernam — 
is attested by records considerably older than the Con- 
quest. There is reason to believe that anciently it 
was resorted to in many more cases than our oldest 
Common-law authorities recognise ; but about the 
reign of Henry the Third, when it was confined 
to certain specific claims and wrongs, the course of 
the proceeding was as follows : The person assuming 
himself to be aggrieved seized the goods (which 
anciently were almost always the cattle) of the per- 
son whom he believed to have injured him or failed 
in duty towards him. He drove the beasts to a 
pound, an enclosed piece of land reserved for the 
purpose, and generally open to the sky. Let me 
observe in passing that there is no more ancient 
institution in the country than the Village-Pound. 
It is far older than the King's Bench, and probably 
older than the Kingdom. While the cattle were on 
their way to the pound the owner had a limited 
right of rescue which the law recognised, but which 
he ran great risk in exercising. Once lodged within 
the enclosure, the impounded beasts, when the pound 
was uncovered, had to be fed by the owner and not 
by the distrainor ; nor was the rule altered till the 
present reign. The distrainor's part in the proceed- 
ings ended in fact with the impounding ; and we 
have to consider what courses were thereupon open 
to the person whose cattle had been seized. Of coursn 



fc64 COURSE OF A DISTRESS. lect. ix. 

he might submit and discharge the demand. Or he 
might tender security for its acquittal. Or again he 
might remain obstinate and leave his beasts in the 
pound. It might happen, however, that he altogether 
denied the distrainor's right to distrain, or that the 
latter, on security being tendered to him for the 
adjustment of his claim, refused to release the cattle. 
In either of these cases the cattle-owner (at least at 
the time of which we are speaking) might either 
apply to the King's Chancery for a writ commanding 
the Sheriff to 4 make replevin,' or he might verbally 
complain himself to the Sheriff, who would then 
proceed at once to ' replevy.' The process denoted by 
this ancient phrase consisted of several stages. The 
Sheriff first of all demanded a view of the impounded 
cattle ; if this were refused, he treated the distrainor 
as having committed a violent breach of the King's 
peace, and raised the hue and cry after him. If the 
cattle (as doubtless constantly was the case) had been 
driven to a distance and out of his jurisdiction, the 
Sheriff sought for cattle of the distrainor and seized 
them to double the value of the beasts which were 
not forthcoming — the ' taking in withernam ' of old 
English law. In more peaceable times, however, and 
among law-abiding people, the deputy of the Crown 
was allowed to see the cattle, which he immediately 
returned to their original owner on a pledge to abide 
by the decision of a Court of Justice. A day was 



lect. ix. ANTIQUITY OF PROCEDURE IN DISTRESS. 265 

then appointed for the trial, which took place with 
the proceeding well known to lawyers as the Action 
of Replevin. A great deal of technical learning has 
clustered round it, but for our purposes it is enough to 
say that the plaintiff in the action was the owner of 
the distrained cattle and the defendant was the 
distrainor. 

The comparative antiquity of the various steps in 
the procedure are not, I think, difficult to detect. 
Nothing can be more archaic than the picture pre- 
sented by its more venerable details. The seizure of 
the cattle, the rescue and the counter- seizure, belong 
to the oldest practices of mankind. We were carried 
back, by the Legis Actio Sacramenti of the Eoinans, 
to a sudden fight over disputed property barely 
stopped by a casual passer-by. Here, not in a city- 
community, but among the ancient legal forms of a 
half-pastoral, half-agricultural people, we come upon 
plain traces of a foray. But the foray which survives 
in the old Law of Distress is not, like the combat of 
the ancient Roman Action, a mere dramatic represen- 
tation. Up to a certain point it is a reality, and the 
most probable account of its origin is that it is a 
genuinely disorderly proceeding which the law steps 
in to regulate. You will see presently that there 
are other independent reasons for thinking that some 
of the earliest interferences of the power which we 
call the Law, the State, or the King, with high-handed 



266 PRIMITIVE OBJECTS OF DISTRESS. lect. a, 

violence consisted, neither in wholly forbidding it no? 
in assuming active jurisdiction over the quarrel which 
provoked it, but in limiting it, prescribing forms for 
it, or turning it to new purposes. Thus the next 
series of incidents in the practice of distraint — the 
impounding, the stress laid upon pledge or security, 
and the acknowledgment of continuing ownership 
which is implied in the liability of the person dis- 
trained upon to feed the cattle, and in the rule that 
the distrainor shall not work them — belong to a 
newer range of ideas which dictate the first attempts 
to moderate reprisals and regulate revenge for wrong. 
Distress now becomes a semi-orderly contrivance for 
extorting satisfaction. Many vestiges of this ancient 
function remain. It has been observed by Blackstone 
and others that the modified exemption of certain 
classes of goods from distraint — plough- oxen, for 
example, and tools of trade — was not in its origin the 
least intended as a kindness to the owner. It was 
entailed by the very nature of the whole proceeding, 
since without the instruments of tillage or handicraft 
the debtor could never pay his debt. A passage in 
the 'Dialogus de Scaccario' (ii. 14), prescribing the 
order in which the goods of the King's debtors are 
to be sold, strongly bears out this view. 

Latest in the order of proceeding, and latest pro- 
bably in date, came the direct interposition of the 
State. The King steps in, first, in what we should now 



iect. ix. PECULIAEITIES OF ACTION OP REPLEVIN. 267 

call his administrative capacity. His administrative 
deputy, the Sheriff, on complaint made by their owner, 
follows up the cattle, demands a sight of them, raises 
the hue and cry if it be refused, and seizes twice 
their number if the beasts have been driven away. 
Even when he obtains his view, he can do nothing 
unless the cattle-owner, denying the right of his ad- 
versary to distrain, is prepared with security that he 
will try the question between them in a Court of 
Justice. Thus tardily does that power make its ap- 
pearance which according to our notions should long 
since have appeared on the scene, the judicial power 
of the Commonwealth. Its jurisdiction is obviously 
acquired through the act of the Sheriff in restoring 
the cattle upon pledge given. The distrainor has 
lost his material security, the cattle. The owner of 
the cattle has become personally bound. And thus 
both are placed under a compulsion which drives 
them in the end to a judicial arbitration. 

Nearly six hundred years ago, the contrast be- 
tween the ancient proceedings in Replevin and suits 
conducted on what were then modern principles was 
already striking. The second chapter of the Statute 
of Westminster the Second is aimed at certain contri- 
vances by which tenants contrived to defeat the lord's 
remedy by distress; and, in giving the King's Justices 
jurisdiction in such cases, it goes on to say that such 
a provis ion does not militate against the principle of 



268 THE ACTION OF REPLEVIN. Lect. IX, 

the Common Law which forbids the removal of suits 
to the Justices on the petition of a defendant. 'For/ 
it adds, c although at first sight the tenant may seem 
to be plaintiff and the lord defendant, yet in reality, 
regard being had to the fact that the lord distrains 
and sues for services and dues behind, he is rather 
plaintiff or complainant than defendant.' The action 
of Replevin is in fact an excellent illustration of the 
difference between ancient and modern juridical 
principles. According to ideas now confirmed in us, 
the person who sets a Court of Justice in motion is 
the person who complains of a wrong. In the case 
supposed, this is not the man distrained upon but the 
man who distrains. He it is who has suffered an in- 
jury for which he made reprisals on his adversary's 
property. Yet it is his adversary who has to start 
the legal procedure and to constitute himself plaintiff 
in the Action of Replevin. The reason why a modern 
Court of Justice would insist on taking the whole 
dispute into its own hands, and dealing with it in its 
own way from the very beginning, is that, having 
always the full command of the public force, it is sure 
of being able to compel the submission of the defend- 
ant to its jurisdiction and of coercing him in the end 
till he does justice, however long the coercion may 
be delayed. But at the era to which the procedure 
in distress originally belonged, the Court had no such 
assurance of power ; and hence the person assumed to 



lect. IX. THE LEGES BABBARORUM. 269 

have a grievance is allowed to proceed according to 
the primitive method, which has the advantage of 
giving the other side the strongest inducements to 
call in the judicial authority of the State and submit 
to its decision. 

The information furnished to us respecting this 
primitive procedure by the various bodies of Continen- 
tal Teutonic law known collectively as the Leges 
Barbarorum is of a very interesting kind. Almost 
all of them contain references to Pignoratio or dis- 
traint of goods. The Visigothic law expressly pro- 
hibits it ; and, at the other end of the scale, the Lom- 
bardic law has a trace of that licence of distress which 
has survived in the English Common-law and permits 
it after simple demand of payment. But the Salic 
law, which the most learned Germans now believe to 
have been drawn up at some period between the time 
at which Tacitus wrote and the time at which the 
Franks broke into the Empire, contains a series of 
very peculiar and instructive provisions on the sub- 
ject, which have been for the first time fully interpre- 
ted by Sohm. Under this system, Distress is not yet 
a judicial remedy ; it is still an extrajudicial mode of 
redress, but it has been incorporated with a regular 
and highly complex procedure. A succession of 
notices have to be given in solemn form by the com- 
plainant to the person of whom he complains, and 
whose property he proposes to seize. Nor can he 



270 ANCIENT TEUTONIC FORMS OF DISTRAxNT. lect. IX 

proceed to seizure until he has summoned this person 
before the Popular Court, and until the Popular 
Officer of the Court, the Thunginus, has pronounced 
a formula licensing distraint. Then, and not till then, 
he can make what we should call a distress upon his 
adversary. It seems quite clear that, before the 
Conquest, attempts were made in England to narrow 
the liberty of distraint by the same class of restrictions 
which we find in the Salic Law and the allied Teutonic 
bodies of usage. These provisions have their close 
counterpart in the ordinance of Canute that no man is 
to take nams unless he has demanded right three 
times in the Hundred ; if he obtain no justice the 
third time, he is to go to the Shire-gemot ; the shire 
is to appoint him a fourth time, and, if that fails, he 
may take the distress. 

It is to be remarked that the process of the Salic 
Law which answers to our distress is especially a 
remedy in certain cases of breach of contract. Dis- 
traint, the seizing of nams, was certainly employed to 
enforce a similar class of demands under old English 
law before the Conquest ; and the practice seems to 
have been known in Bracton's day, though the 
brevity of his notice does not permit us to understand 
fully its course and character, In this respect the 
Pignoration of the Continental Teutonic law is more 
archaic than the distress with which we are familiar 
in England, since the fragment of the system which 






1ECT. IX. FRANKISH PROCEDURE. 271 

has survived in our Common law (and it is to this 
that it probably owes its survival) was from the first 
pre-eminently a remedy by which the lord compelled 
his tenants to render him their services. But on the 
other hand it is interesting to observe that our Eng- 
lish distress is in some particulars of a more archaic 
character than the corresponding compulsory process 
of the Leges Barbarorum. Thus notice of the inten- 
tion to distrain was never in England essential to the 
legality of distress (Trent v. Hunt, 9 Exch. Rep. 
20), although statute-law renders it necessary to 
make a sale of the distrained property legal; and 
again, in the oldest ascertainable state of our Com- 
mon-law, though distraint sometimes followed a pro- 
ceeding in the lord's Court, yet it did not necessarily 
presuppose or require it. 

It should be understood that the Frankish pro- 
cedure was completely at the disposal of the com- 
plainant. It is not a strictly judicial procedure, but 
rather a procedure regulating extrajudicial redress. 
If the complainant observes the proper forms, the 
part of the Court in licensing seizure is purely 
passive. Even after the exhaustive examination 
which this part of the Salic Law has undergone from 
Professor Sohm, it is very difficult to say whether at 
any point of the procedure the defendant had the 
opportunity of putting in a substantial defence ; but 
it seems certain that, whenever he could do this, he 



272 ANCIENT YIEW OF PLAINTIFF AND DEFENDANT, lect. ix. 

appeared virtually as a plaintiff like the distrainee in 
our Action of Replevin, and there is no doubt that, 
if he submitted or was unsuccessful in attacking the 
proceedings of the other side, he paid not only the 
original debt but various additional penalties entailed 
by neglect to comply with previous notices to dis- 
charge it. Such a procedure seems to us founded on 
the now monstrous assumption that plaintiffs are 
always in the right and defendants always in the 
wrong. Yet the assumption would not perhaps 
have struck the earliest authors of legal improvement 
as altogether monstrous, nor could they have quite 
comprehended the modern principle which compels 
the complainant to establish at all events a jmmd 
facie case. With them, the man most likely to be in 
the right would appear to be the man who faced the 
manifold risks attending the effort to obtain redress, 
the man who complained to the Popular Assembly, 
the man who cried for justice to the King sitting in 
the gate. It is only when violent wrong has ceased 
to be rife, when the dangers of contesting the op- 
pressions of powerful men have become insignificant, 
when the law has been long and regularly adminis- 
tered according to technical procedure, that unjust 
claims are seen to be at least as common as unjust 
refusals to satisfy them. In one particular case, the 
complaint of the King, the old assumption that com- 
plainants are presumably in the right was kept long 



lect. IX. GAIUS AND BLACKSTONE. 273 

alive among us, and had much to do with the obsti- 
nate dislike of lawyers to allowing prisoners to be 
defended by Counsel. 

Gaius, speaking of the Leges Actiones generally, 
observes that ' they fell into discredit, because through 
the excessive subtlety of the ancient lawyers, things 
came to such a pass that he who committed the 
smallest error failed altogether. ' 

Blackstone, many centuries afterwards, has the 
following remark on the English Law of Distress: 
4 The many particulars which attend the taking of a 
distress used formerly to make it a hazardous kind of 
proceeding ; for, if any one irregularity was com- 
mitted, it vitiated the whole.' 

I quote these passages, not only on account of the 
curious similarity of language between two writers 
of whom the later could not possibly have read the 
earlier, but because the excessive technicality of 
ancient law which they both notice goes some way 
to explain the severity and onesidedness of the old 
Teutonic procedure. The power of seizing a man's 
property extrajudicially in satisfaction of your de- 
mand was, as Professor Sohm justly remarks, a sort 
of two-edged sword. You might bring your adver- 
sary to the ground by it, but you were extremely 
likely to injure yourself. For, unless the com- 
plainant who sought to distrain went through all the 
acts and words required by the law with the most 

T 



274 REASONS FOR SURVIVAL OF DISTRESS, lect. de, 

rigorous accuracy, he in his turn, besides failing in 
his object, incurred a variety of penalties, which 
could be just as harshly exacted as his own original 
demand. The difficulty of putting the procedure 
into operation thus at once made disputants cautious 
in resorting to it, and seemed to men in general to 
compensate for its inherent inequitableness. This 
consideration, however, though it explains in part 
how the harsh ancient law reconciled itself to the 
sense of right, is not by itself sufficient to account 
for the form which it assumed in the Teutonic Codes, 
or for the vitality of a portion of it amid our own 
institutions. 

I cannot doubt that the practice which I have 
called by the general name of Distress kept its place 
in ancient Teutonic law partly as a mere ; survival/ 
I have already insisted that one great characteristic 
of the primitive ages was the fewness of human ideas. 
Societies, just emerging from the savage state, had 
been used to associate redress of wrong with the 
seizure of a wrong-doer's goods, and they were un- 
able mentally quite to disconnect the two even when 
they began to regulate the practice. They did not, 
therefore, supersede distress by a wholly new system, 
but engrafted it on a later procedure, which occa- 
sionally took the form so curiously preserved in its 
main features to our own day by the English Com- 
mon law, but which at a relatively later date and 



/ 
lect. ix. JUDICIAL PROCEDURE OF SALIC LAW. 275 

more generally may be believed to have shaped itself 
on the model of the rules observed by the Salian 
Franks. 

It is not possible to explain all survivals by some 
convenience which they incidentally serve. Some 
have undoubtedly been continued by superstition, 
some by mere habit. But those relics of ancient 
thought and conduct which have been kept alive 
longest have generally had an usefulness of their 
own. Here the private redress of wrong, taken into 
the legal procedure, served to compel the appearance 
of the defendant and his submission to jurisdiction 
at a time when judicial authority was yet in its in- 
fancy, and when Courts of Justice could not as yet 
completely and regularly command the aid of sove- 
reign power. Gradually, as the public force, the arm 
of the State, was more and more placed at the disposal 
of tribunals, they were able more and more to dis- 
pense with extrajudicial assistance. In the state of 
Teutonic law represented by the Frankish Code, we 
find a specific class of cases tried throughout judicially 
(in our modern sense of the word) from the initial 
stage to the judgment; but the judgment is not by its 
own force operative. If the defendant has expressly 
promised to obey it, the Count or royal deputy, on 
being properly summoned, will execute it; but if no 
such promise has been made, the plaintiff has nc 
remedy except an application to the King in person. 

T 2 



276 LATER HISTORY OF DISTRESS. LBCT, IX 

No long time, however, after the Franks have been 
settled within the Empire, we find that another step 
has been taken towards the administration of justice 
on modern principles, and now the royal deputy will 
execute the judgment even though there has been no 
promise to submit to it. At this point Distress is 
wholly taken out of the hands of private litigants 
and extrajudicial seizure becomes judicial seizure. 
The change is obviously a result of the growing 
vigour of Courts, greatly due in our own country to 
the development of royal justice at the expense of 
popular justice. Still English judicial proceedings 
long savoured of the old practices. Every student of 
our ancient English forms of proceeding will recollect 
on what small apparent provocation the King con- 
stantly took the lands of the defendant into his hands 
or seized his goods, simply to compel or perfect his 
submission to the royal jurisdiction. It seems 
probable that Distress was gradually lost in and 
absorbed by Attachment and Distringas. The theory 
of Attachment now is that it is the taking of property 
into the actual or constructive possession of the 
judicial power, and the later course of change under 
which it has faded into an occasional and exceptional 
proceeding, requiring to be justified by special 
reasons, corresponds with the growing confidence of 
Courts of Justice in their possession of irresistible 
power confided to them by the sovereign. As regards 



LECT. II. MODERN THEORY OF DISTRESS. 277 

that fragment of the primitive institution which 
remains in our law, I imagine that Distress would 
at most have become a mere survival, confined perhaps 
to the impounding of stray cattle, if several statutory 
innovations had not turned it into a convenient extra- 
judicial remedy for landlords, by giving the distrainor 
a power of sale which in old English law was limited 
to a few very special demands. The modern theory 
of Distress is that a landlord is allowed to distrain 
because by the nature of the case he is always com- 
pelled to give his tenant credit, and that he can 
distrain without notice because every man is supposed 
to know when his rent is due. But this theory, 
though it explains the continuance of Distress to our 
day, does not at all fit in with the most ancient ideas 
on the subject, and could not indeed be easily made to 
square with the practice of distraint even at a date so 
comparatively late as that at which Brae ton wrote. 
How accidental is the association of Distress with the 
powers of landlords may be seen from the fact that, 
though there are plentiful traces of the institution in 
the ancient Scottish law, the same practical results 
which the English system produces by allowing land- 
lords to distrain for rent are chiefly attained in Scot- 
land by applying to landlord and tenant the Ro- 
manised Law of Hypothek. 

The comparison of the various Teutonic bodies 
of law suggests then to my mind, as regards those 



278 DEVELOPMENT OF REMEDIES. lbct. IX 

systems, the following conclusions respecting the 
historical development of the remedies which grew 
out of the savage practice of violently seizing pro- 
perty in redress for supposed wrong. Two alternative 
expedients were adopted by nascent law. One of 
these consisted in tolerating distraint up to a certain 
point ; it was connived at so far as it served to compel 
the submission of defendants to the jurisdiction of 
Courts, but in all other cases it was treated as wilful 
breach of the peace. The other was the incorporation 
of distraint with a regular procedure. The com- 
plainant must observe a great number of forms at 
his peril ; but if he observes them he can distrain in 
the end. In a still more advanced condition of legal 
ideas, the tribunals take the seizure of land or goods 
into their own hands, using it freely to coerce de- 
fendants into submission. Finally, Courts of Justice 
resort to coercion before judgment only on the rarest 
occasions, sure as they at last are of the effectiveness 
of their process, and of the power which they hold in 
deposit from the Sovereign Commonwealth. 



mct. x. IRISH LAW OF DISTRESS. 279 



LECTURE X. 

THE PRIMITIVE FORMS OF LEGAL REMEDIES. 
II. 

I pass from the early law of procedure in the Roman 
and Teutonic societies to the corresponding branch 
of another ancient legal system which has been only 
just revealed to us, and which, so far as its existence 
was suspected, was supposed until lately to be sepa- 
rated by peculiarly sharp distinctions from all Ger- 
manic bodies of usage. 

Rather more than half of the Senchus Mor is 
taken up with the Law of Distress. The Senchus 
Mor, as I told you, pretends to be a Code of Irish 
law, and indeed to be that very Code which was 
prepared under the influence of St. Patrick upon 
the introduction of Christianity into Ireland. I 
added that in the present state of our knowledge, 
no theory can be very confidently advanced as to 
the date of this Brehon compendium. It may be 
that some such revision of the pre-Christian law 
did take place ; it may be that the Brehon lawyers 
only conjectured that it must have taken place ; 



S80 DISTRESS ACCORDING TO SENCHUS MOR. lect. x» 

it may be that a tract of unusual dimensions and 
proportionately valued by the Brehon law -school 
which happened to possess it, came gradually to 
be associated with a name held in pre-eminent 
honour or pre-eminently sacred, a process of which 
there are believed to be several examples in the 
history of Eastern jurisprudence. These doubts, 
however, as to the true date of the Senchus Mor do 
not take away from the significance and instructive- 
ness of the fact that in a volume of great antiquity, 
of undoubted genuineness, and evidently thought by 
its possessors to contain all that was important in the 
law, the Law of Distress, now an extremely sub- 
ordinate branch of our legal system, occupies a space 
so extraordinarily large. 

I borrow from the Editor of the First "Volume of 
' Ancient Laws of Ireland/ the following epitome of 
the old Irish law of distress as laid down in the 
Senchus Mor : — 

4 The plaintiff or creditor, having first given the 
proper notice, proceeded, in the case of a defendant 
or debtor, not of chieftain grade, to distrain. If the 
defendant or debtor were a person of chieftain grade, 
it was necessary not only to give notice, but also to 
" fast upon him." The fasting upon him consisted in 
going to his residence and waiting there for a certain 
time without food. If the plaintiff did not within a 
certain time receive satisfaction for his claim, or a 



SECT. x. DISTRESS ACCORDING TO SENCHUS MOB. 281 

pledge therefor, he forthwith, accompanied by a 
law-agent, witnesses, and others, seized his distress. 
The distress, when seized, was in certain cases liable 
to a Stay, which was a period varying according to 
fixed rules, during which the debtor received back 
the distress, and retained it in his own keeping, the 
creditor having a lien upon it. Such a distress is a 
" distress with time ; " but under certain circumstances 
and in particular cases an " immediate distress " was 
made, the peculiarity of which was that during the 
fixed period of the Stay the distress was not allowed 
to remain in the debtor's possession, but in that of 
the creditor, or in one of the recognised greens or 
pounds. 

' If the debt was not paid by the end of the Stay. 
the creditor took away the distress, and put it in a 
pound. He then served notice of the distress on the 
debtor whom he had distrained, letting him know 
where what was distrained was impounded. The 
distress remained in the pound a certain period, fixed 
according to its nature (dithim, translated " delay in 
pound," is the name of this period). At the end of 
the delay in pound, the Forfeiting Time began to 
run, during which the distress became forfeited at 
the rate of three " seds " per day, until entirely for- 
feited. If the entire value of the distress thus for- 
feited was exactly equal to the original debt and the 
subsequent expenses, the debt was liquidated ; if it 



2^2 IRISH AND GERMANIC DISTRESS. lect. x, 

was less than this, a second distress was taken for the 
difference ; and, if more, the overplus was returned. 
All this proceeding was managed by the party him- 
self, or his law-agent, with the several witnesses of 
the various steps, and other necessary parties. 

' But if, instead of allowing his cattle to go to 
pound, the debtor gave a sufficient pledge, e.g., his 
son, or some article of value, to the creditor, that he 
would within a certain time try the right to the dis- 
tress by law, the creditor was bound to receive such 
pledge. If he did not go to law, as he so undertook, 
the pledge became forfeited for the original debt. At 
any time, up to the end of the " dithim," the debtor 
could recover his cattle by paying the debt and such 
expenses as had been incurred. But, if he neglected 
to redeem them until the " dithim " had expired, then 
he could only redeem such as were still unforfeited.' 

The very existence in ancient Ireland of the law 
thus summarised is almost enough by itself to de- 
stroy those reckless theories of race which assert an 
original, inherent difference of idea and usage between 
Teuton and Celt. The Irish system of Distress is 
obviously, in all essential features, the Germanic 
system. It wears, on its face, a very strong general 
resemblance to the corresponding branch of our 
Common Law ; and I have seen some very ingenious 
attempts to account for the differences between the 
two by suggestions that the primitive contour of the 



ikct. X. IRISH Am) ENGLISH DISTRESS. 283 

English law of Distress has been impaired. The 
object of such speculations is to argue for the direct 
derivation of the English set of rules from the Celtic ; 
but it does not appear to me necessary to resort to a 
supposition which has great and special difficulties of 
its own. The virtual identity of the Irish law of 
Distress with the Teutonic law is best brought out by 
comparing it with the Teutonic systems of procedure 
collectively. Thus the Distress of the Senchus Mor 
is not, like the Distress of the English Common Law, 
a remedy confined in the main to demands of the 
lord on his tenants; as in the Salic and other Con- 
tinental Germanic Codes, it extends to breaches of 
contract, and indeed, so far as the Brehon law is 
already known, it would appear to be the universal 
method of prosecuting claims of all kinds. The 
Notice again to the person whose goods are to be dis- 
trained which it strenuously insists upon, though not 
found in the surviving English Common law, fills an 
important place, as I stated, in other Teutonic collec- 
tions of rules. So too the attendance of witnesses is 
required by the Continental Codes ; and, though the 
presence of the Brehon law agent is peculiar to the 
Irish system and very characteristic of it, certain 
persons having much the same duties are required by 
some of the Teutonic systems to be present during 
the process of distraint. Further, the Stay of pro- 
ceedings, which, has been compared to an Attach- 



2S4 IRISH AND TEUTONIC DISTRESS. LBCT. x. 

ment, seems to me better explained by certain 
provisions of the ' Leges Barbarorum.' Under some 
of them when a person's property is about to be 
seized he makes a mimic resistance ; under the Salic 
law, he protests against the injustice of the attempt ; 
under the Ripuarian law, he goes through the ex- 
pressive formality of standing at his door with a 
drawn sword. Thereupon, the seizure is interrupted 
and an opportunity is given for enquiring into the 
regularity of the proceedings and, probably also, into 
the justice of the claim. The Lien or charge upon 
the distrained property, which the Irish law confers 
on the creditor during the currency of the Stay, is 
not found in the Continental Teutonic law in this 
exact shape ; but, at a particular stage of the Salic 
proceedings, the creditor has the power of interdicting 
the debtor from selling or mortgaging any part of his 
property until the debt has been satisfied. On the 
other hand, several features of the Irish system, 
which are wholly absent from the Continental Teu- 
tonic procedure, or very faintly marked in it, belong 
conspicuously to the English law. Among these 
may be placed the impounding, and the 'taking in 
withernam, ' but the great resemblance of all, and the 
common point of dissimilarity from the most ancient 
of the Leges Barbarorum, lies in the fact that the Irish 
procedure, like the English, requires neither assist- 
ance nor permission from any Court of Justice. Id 



lect. x. DIFFICULTIES AS TO IRISH DISTRESS. 285 

all the Teutonic bodies of custom except the English 
and the Lombardic, even when the greatest latitude 
of seizure is allowed to litigants out of Court, some 
judicial person or body must be applied to before 
they proceed to extremities. With us, however, the 
entire seizure is completed before authority is called 
in ; and the Irish law has exactly the same pecu- 
liarity. Not only so, but the Irish law corresponds 
to the English law of Distress in a very advanced 
stage of development. It does not employ the seizure 
of cattle merely as a method of extorting satisfaction. 
It provides, as you have seen, for their forfeiture in 
discharge of the demand for which they were taken ; 
and thus is distinguished by an improvement which 
was only added to the English law by statute after 
the lapse of several centuries. 

The true difficulty in estimating the place of this 
Irish procedure in the historical development of law 
arises from doubts as to the part really played by the 
legal proceeding in which it terminated. The Eng- 
lish process of Distress, wherever it was felt to be 
unjust, led up to, and ended in, the action of Replevin, 
and the Court, which ultimately tried the action, prac- 
tically acquired its jurisdiction through the interposi- 
tion of the Sheriff in restoring the cattle upon security 
given. No such interference with a. high hand as 
that of the Sheriff appears to be contemplated by the 
Irish law ; but the Brehon lawyer who ought properly 



286 THE IRISH COURTS. LECT. X. 

to accompany the distrainor is expressly stated by 
the Senchus Mor to aid him 4 until the decision of a 
Court.' (' Ancient Laws of Ireland/ i. 85.) What 
was the proceeding thus referred to ? What autho- 
rity had the Irish Courts at any time at which the 
Brehon law was held in respect ? What were these 
Courts ? To what extent did they command the 
public force of the sovereign State ? Was there any 
sovereign power at any time established in any part 
of Ireland which could give operative jurisdiction to 
Courts of Justice and operative force to the law? 
All these questions — of which the last are in truth 
the great problems of ancient Irish history — must in 
some degree be answered before we can have any- 
thing like a confident opinion on the actual working 
of the Law of Distress set forth at such length in the 
Senchus Mor. 

The learned Editors of the various Introductions 
prefixed to the official publications of Ancient Irish 
Law are plainly of opinion that such jurisdiction as 
any Irish Courts possessed was, to use the technical 
phrase, voluntary. The Law of Distress, in this 
view, was clearly enough conceived by the Brehon 
lawyers, but it depended for the practical obedience 
which it obtained on the aid of public opinion and of 
popular respect for a professional caste. Its object 
was to force disputants to submit to what was rather 
an arbitration than an action, before a Brehon selected 



LECT. X. ASSUMED IRISH JUDICIAL ORGANISATION. 287 

by themselves, or at most before some recognised tri- 
bunal advised by a Br ebon. At the same time, it 
would seem that there are ancient Irish tracts or 
fragments of tracts in existence which describe the 
ancient Irish as having had a most elaborate public 
organisation, judicial as well as legislative. Dr. Sul- 
livan, in his Introduction, admits that the information 
which has come down to us on these subjects is very 
fragmentary, and so obscure that it will be impossible 
to give a satisfactory account of them until the whole 
of the law-fragments in Irish MSS. are published or 
at least made accessible to scholars ; but he never- 
theless believes in the historical reality of this or- 
ganisation, and he speaks (Introduction, pp. cclii. 
cclxii.) of the Irish Courts in language of extremely 
modern tinge. Enough is known of Irish history 
to make it very difficult to understand when this 
elaborate judicial system can have existed ; but a 
place is found for it by attributing it to a period 
not only before the Anglo-Norman invasions of 
Ireland, but before the Viking descents on the 
Irish coasts. The safest course is certainly to 
reserve one's opinion on the subject until the au- 
thorities for Dr. Sullivan's statements have been 
much more critically examined than they have been ; 
but I am bound to say that they are not so inhe- 
rently improbable, nor are Dr. Sullivan's opinions 
so hard to reconcile with the views of the Editors 



288 ANCIENT VOLUNTARY JURISDICTIONS. lect. x. 

of the translations, as persons unacquainted with 
legal history might suppose. There are analogies 
to many of the tribunals described among the rudi- 
mentary institutions of several communities. Such 
tribunals might further be highly developed and yet 
their jurisdiction might be only voluntary. Sohm 
appears to me to have proved that the Frankish 
Popular Courts did not execute their own decrees ; 
if the defendant had promised to submit to an award, 
the local deputy of the King might be required to 
enforce it, but, if there had been no such promise, the 
plaintiff was forced to petition the King in person. 
There is much reason in fact for thinking that, in the 
earliest times and before the full development of that 
kingly authority which has lent so much vigour to 
the arm of the law in most Aryan communities, but 
which was virtually denied to the Irish, Courts of 
Justice existed less for the purpose of doing right 
universally than for the purpose of supplying an 
alternative to the violent redress of wrong. Even 
then if we suppose that the Ireland which is said to 
have enjoyed an elaborate judicial organisation was 
greatly ruder and wilder than Irish patriots would 
probably allow it to have been, there is no such in- 
consistency between the prevalence of disorder and 
the frequency of litigation as would make them ex- 
clude one another. The Norse literature, which Mr. 
Dasent has popularised among us, shows that per- 



lect. 3L LITIGATION IN INDIA. 289 

petual fighting and perpetual litigation may go on 
side by side, and that a highly technical procedure 
may be scrupulously followed at a time when homi- 
cide is an everyday occurrence. The fact seems to 
be that contention in Court takes the place of conten- 
tion in arms, but only gradually takes its place ; and 
it is a tenable theory that many of the strange pecu- 
liarities of ancient law, the technical snares, traps, 
and pitfalls with which it abounds, really represent 
and carry on the feints, stratagems, and ambuscades 
of actual armed strife between man and man, between 
tribe and tribe. Even in our own day, when a wild 
province is annexed to the British Indian Empire, 
there is a most curious and instructive rush of suitors 
to the Courts which are immediately established. The 
arm of the law summarily suppresses violence, and 
the men who can no longer fight go to law instead, 
in numbers which sometimes make Indian officials 
believe that there must be something maleficent in 
the law and procedure which tempt men into Court 
who never saw a Court before. The simple explana- 
nation is that the same natural impulse is gratified in 
a new way ; hasty appeals to a judge succeed hur- 
ried quarrels, and hereditary law- suits take the place 
of ancestral blood-feuds. If the transition from one 
state of society to another in modern India were not 
sudden but gradual and slow, as it universally was 
in the old Aryan world, we should see the battle with 

u 



290 PECULIARITIES OF IRISH DISTRESS. lect. x 

technicalities going on in Court at the same time that 
the battle was waged out of Court with sword and 
matchlock. 

When, however, we are considering the place in 
legal history of the old Irish Law of Distress, the 
point to which we have to attend is not so much the 
mere existence of Courts of Justice as the effective- 
ness of their process, or in other words the degree in 
which they command the public force of the Common- 
wealth, I think I have shown it to be probable that, 
in proportion as Courts grow stronger, they first take 
under their control the barbarous practice of making 
reprisals on a wrongdoer by seizing his property, and 
ultimately they absorb it into their own procedure. 
Now, the Irish Law of Distress belongs in one respect 
to a very early stage in this course of development, 
since it is even more completely extrajudicial than 
is that fragment of the primitive barbarous remedy 
which has survived among ourselves. On the other 
hand, there are several particulars in which it is not 
more but distinctly less archaic than the English 
Common law. The l Notice ' to the defendant, for 
which it provides — the ' Stay,' or temporary retention 
of the goods by the owner, subject to a lien — the wit- 
nesses who have to be present, and the skilled legal ad- 
viser who has to attend throughout the proceedings — 
belong to a range of ideas greatly more advanced than 
that under which all these precautions are dispensed 



/ 

lect. x. EELATIVE ANTIQUITY OF IEISH DISTRESS. 291 

with. Even stronger evidence of maturity is furnished 
by the almost inconceivable multitude of rules and 
distinctions which the Senchus Mor applies to every 
part of the proceedings ; and our own experience shows 
that the most remarkable feature of the old Irish 
law, the forfeiture of the property taken in distress 
when the original debt and the expenses of custody 
come up to its full value, has its place among the 
latest improvements in jurisprudence. 

Whatever, then, be the truth as to the Ireland of 
the golden age, these characteristics of the Irish Law of 
Distress leave on my mind a very distinct impression 
that it was brought to the shape in which we find it 
amid a society in which the action of Courts of Jus- 
tice was feeble and intermittent. It says much for 
the spirit of equity and reasonableness which animated 
the Brehon lawyers who gave it its form, and much 
also for their ingenuity, but suggests that they relied 
little on the assistance of Courts and directed their 
efforts to making the most of a remedy which was 
almost wholly extrajudicial. The comparison of the 
Teutonic laws shows that they had a basis of Aryan 
custom to work upon; but, while in other communities 
the superstructure on this foundation was the work 
of Courts ever feeling themselves stronger, in Ireland 
it seems to have been the work of lawyers dependent 
in the main for the usefulness of their labours on 
popular respect for their order. I do not affect to 

v 2 



292 IRISH AND ENGLISH DISTRESS. lecx. x. 

say how the ancient law of Ireland is to be fitted to 
the ancient history. It may be that the picture of 
judicial organisation found in some law-tracts is, 
like the description of private law found in others, 
rather a representation of what ought to be than of 
what is or has been. It may be also that the law 
laid down in the Senchus Mor is of much later date 
than the compilers of that tract pretend, and that 
therefore it received its shape in times of disturb- 
ance and confusion. But I cannot believe that it ever 
synchronised with a period of judicial activity and 
efficiency. 

From what I have said I think you will have 
collected the chief points of difference between the 
Irish Law of Distress, as laid down in the Senchus 
Mor, and the English Common Law of Distress, as de- 
clared by the earliest authorities which our Courts 
recognise. Both had the same origin, but the Irish 
distraint was an universal, highly developed proceed- 
ing employed in enforcing all kinds of demands, 
while the corresponding English remedy, though 
much less carefully guarded by express rules, was 
confined to a very limited and special class of cases. 
I have a melancholy reason for calling your attention 
to the contrast. Edmund Spenser has spoken of it, 
in his l View of the State of Ireland/ and here is the 
passage : — 

1 There are one or two statutes which make the 



/ 

lbct. x. spenser's criticism on law of distress. 293 

wrongful distraining of any man's goods against the 
forme of Common Law to be fellony. The which 
statutes seeme surely to have been at first meant for 
the good of the realme, and for restrayning of a foul 
abuse, which then reigned commonly among that 
people, and yet is not altogether laide; that, when 
anyone was indebted to another, he would first de- 
mand his debt, and, if he were not paid, he would 
straight go and take a distress of his goods and 
cattell, where he could find them to the value; which 
he would keep till he were satisfied ; and this the simple 
churl (as they call him) doth commonly use to doe 
yet through ignorance of his misdoing, or evil use 
that hath long settled among them. But this, though 
it be sure most unlawful, yet surely me seems it is 
too hard to make it death, since there is no purpose 
in the party to steal the other's goods, or to conceal the 
distress, but he doeth it openly for the most part before 
witnesses. And again the same statutes are so slackly 
penned (besides there is one so unsensibly contryved 
that it scarcely carryeth any reason in it) that they 
are often and very easily wrested to the fraud e of 
the subject, as if one going to distrayne upon his own 
land or tenement, where lawfully he may, yet if in 
doing thereof he transgresse the least point of the 
Common Law, he straight committeth fellony. Or 
if one by any other occasion take any thing from 
another, as boyes sometimes cap one another, the 
same is straight fellony. This is a very hard law.' 



294 WRONGFUL DISTRESS A CAPITAL FELONY, lect. x. 

Spenser goes on, in a passage which I need not 
quote in full, to account for these statutes by a 
special provision in the charters of most of the Anglo- 
Irish corporate towns. The English law had not 
currency, he tells us, beyond the walls, and the bur- 
gesses had the power conferred on them of distraining 
the goods of any Irishman staying in the town or 
passing through it, for any debt whatsoever. He 
suggests that the Irish population outside was led in 
this way to suppose it lawful to* distrain the property 
of the townspeople. The explanation, if true, would 
be sad enough, but we know that it cannot convey 
the whole truth, and the real story is still sadder. 
The Irish used the remedy of distress because they 
knew no other remedy, and the English made it a 
capital felony in an Irishman to follow the only law 
with which he was acquainted. Nay, those very sub- 
tleties of old English law which, as Blackstone says, 
made the taking of distress ' a hazardous sort of pro- 
ceeding ' to the civil distrainor, might bring an Irish- 
man to the gallows, if in conscientiously attempting 
to carry out the foreign law he fell into the smallest 
mistake. It is some small consolation to be able, as 
one result of the inquiries we have been prosecuting, 
to put aside as worthless the easy justification of 
those who pass over these cruelties as part of the 
inevitable struggle between men of different races. 
Both the Irish law, which it was a capital crime tc 



lect. JL THEORIES CONCES^ING DISTRESS. 296 

obey, and the English law, which it was a capital 
crime to blunder in obeying, were undoubtedly de- 
scended from the same body of usage once univer- 
sally practised by the forefathers of both Saxon and 
Celt. 

Among the writers who have recognised the strong 
affinities connecting the English and Irish Law of 
Distress, I find it difficult to distinguish between 
those who believe in the direct derivation of the 
English law from pre-existing Celtic customs com- 
mon to Britain and Ireland, and those who see a 
sufficient explanation of the resemblances between 
the two sets of rules in their common parentage. I 
am not at all prepared to deny that recent researches, 
and particularly those into old French customary 
law, render it easier to believe than it once was that 
portions of primitive or aboriginal custom sur- 
vive the most desolating conquests. But I need 
scarcely say that the hypothesis of the direct descent 
of any considerable branch of English law from 
British usage is beset by extraordinary difficulties, 
of which not the least is the curiously strong case 
which may also be made out for the purely Roman 
origin of a good many institutions and rules which 
we are used to consider purely English and Germanic. 
On this last point a very interesting little volume, 
which has attracted too little notice, Mr. Coote's 
4 Neglected Fact in English History,' may be read 



296 DISTRESS AN AEYAN CUSTOM. lect. x 

with advantage, and should be compared with the 
reply to its arguments, on the whole a successful 
one, which Mr. Freeman published in ' Macmillans 
Magazine' for July, 1870. The true rival of all 
these theories of the derivation of one body of custom 
from another is, of course, the theory of the common 
descent of all from an original basis of usage which 
we must, provisionally at all events, call Aryan. Con- 
fining ourselves to the practice which we have been 
investigating, the remedy for supposed wrong by 
distress, if there could be a doubt of its being a 
legacy from the primitive Aryan usages, it would be 
removed by the remarkable detail which connects the 
Irish with the Hindoo law. The Irish rules of dis- 
traint very strongly resemble the English rules, less 
strongly resemble the Continental Teutonic rules, 
but they include one rule not found in any Teutonic 
Code, almost unintelligible in the Irish system, but 
known to govern conduct even at this hour all over 
the East, where its meaning is perfectly clear. This 
is the rule that a creditor who requires payment from 
a debtor of higher rank than himself shall ' fast upon 
him.' What possible explanation will cover all the 
fact except that the primitive Aryans bequeathed the 
remedy of distress to the communities which sprang 
from them, and that varieties of detail have been pro- 
duced by what Dr. Sullivan, in his Introduction, has 
happily called dynamical influences? 



user. x. ESDIAN FORM OF DISTRESS. 297 

Here is the leading provision of the Senchas Mor 
on the subject (i. 113) : — 

' Notice precedes every distress in the case of the 
inferior grades except it be by persons of distinction 
or upon persons of distinction. Fasting precedes 
distress in their case. He who does not give a pledge 
to fasting is an evader of all ; he who disregards all 
things shall not be paid by God or man.' 

Mr. Whitley Stokes was the first, I believe, to 
point out that the institution here referred to was 
identical with a practice diffused over the whole East, 
and called by the Hindoos ' sitting dharna.' I will 
presently read you a passage in which the proceed- 
ing is described as it was found in India before the 
British Government, which has always regarded it as 
an abuse, had gone far in its efforts to suppress it. 
But perhaps the most striking examples of the ancient 
custom are to be found at this day in Persia, where 
<I am told) a man intending to enforce payment of a 
demand by fasting begins by sowing some barley at 
his debtor's door and sitting down in the middle. 
The symbolism is plain enough. The creditor means 
that he will stay where he is without food, either 
until he is paid or until the barley-seed grows up and 
gives him bread to eat. 

The corresponding Indian practice is known, I 
before stated, as ' sitting dharna ' — dharna, according 
to the better opinion, being exactly equivalent to the 



298 SITTING DHARJSA. lbct. x 

Eoman c capio,' and meaning ' detention ' or : arrest/ 
Among the methods of enforcing payment of a debt 
described in the collection of rules attributed to the 
semi-divine legislator, Manu (viii. 49), is one which 
Sir William Jones renders ' the mediation of friends ; ' 
but more recent Sanscrit scholars assert that the ex- 
pression of the original text signifies ' dharna.' And 
in the Vyavahara Mayukha, a Brahminical law-book 
of much authority, Brihaspiti, a juridical writer some- 
times classed with Manu, is cited as enumerating, 
among the lawful modes of compulsion by which the 
debtor can be made to pay, ' confining his wife, his 
son, or his cattle, or watching constantly at his door/ 
This remarkable passage not only connects Hindoo 
law with Irish law through the reference to ' watch- 
ing constantly at the door,' but it connects it also 
with the Teutonic, and among them with the Eng- 
lish bodies of custom, by speaking of the distraint 
of cattle as a method of enforcing a demand. We 
have not in the Western world, so far as I am aware, 
any example of so strong a form of distress as seizing 
a man's wife or children, but it is somewhat curious 
that we have evidence of its having been common in 
ancient Ireland to give a son as a pledge to the cre- 
ditor for the purpose of releasing the distrained 
property. 

Lord Teignmouth has left us a description (in 
Forbes' & Oriental Memoirs/ ii. 25) of the form which 



/ 
lect. x. SHORES ACCOUOT OF DHARNA. 299 



the ' watching constantly at the door of Brihaspiti 
had assumed in British India before the end of the 
last century : 'The inviolability of the Brahmin is a 
fixed principle with the Hindoos, and to deprive him 
of life, either by direct violence or by causing his 
death in any mode, is a crime which admits of no 
expiation. To this principle may be traced the prac- 
tice called dharna, which may be translated caption 
or arrest. It is used by the Brahmins to gain a 
point which cannot be accomplished by any other 
means, and the process is as follows : The Brahmin 
who adopts this expedient for the purpose mentioned 
proceeds to the door or house of the person against 
whom it is directed, or wherever he may most con- 
veniently arrest him ; he then sits down in dharna 
with poison or a poignard or some other instrument 
of suicide in his hand, and threatening to use it if his 
adversary should attempt to molest or pass him, he 
thus completely arrests him. In this situation the 
Brahmin fasts, and by the rigour of the etiquette the 
unfortunate object of his arrest ought to fast also, 
and thus they both remain till the institutor of the 
dharna obtains satisfaction. In this, as he seldom 
makes the attempt without the resolution to perse- 
vere, he rarely fails ; for if the party thus arrested 
were to suffer the Brahmin sitting in dharna to 
perish by hunger, the sin would for ever lie upon 
his head. This practice has been less frequent of 



300 SANCTIONS OF DIIARNA. Li«rr. x. 

late years, since the institution of the Court of Jus- 
tice at Benares in 1793 ; but the interference of the 
Court and even of the Resident has occasionally 
proved insufficient to check it.' 

You will observe that the old Brahminical writer 
merely speaks of confining a man to his house by 
4 watching constantly at the door ' as one among 
several modes of extorting satisfaction. He classes 
it with forms of distraint more intelligible to us — the 
seizure of the debtor's cattle, of his wife, or of his 
child. Though the ancient rule has not descended to 
us along with its original context, we need not doubt 
that even in the earliest times it was enforced by a 
supernatural sanction, since every violation of the 
Brahminical Code was regarded by its authors not 
only as a civil offence but as a sin. Thus a Brahmin 
might quite well be conceived as saying with the 
writer in the Senchus Mor, ' He who does not give a 
pledge to fasting is an evader of all; he who dis- 
regards all things shall not be paid by God or man.' 
Many centuries then elapse, which it would be vain 
to calculate, and almost in our own day we find the 
ancient usage practised in India, but with modifica- 
tions corresponding to a great deal of change which 
is suspected to have occurred in Hindoo theology. 
The indefinite supernatural penalty has become the 
definite supernatural penalty incurred by destroying 
life, and particularly human life. The creditor not 



lect. x. MODERN PROHIBITION OF DHAENA. 301 



only 'watches at the door/ but kills himself by 
poison or dagger if the arrest is broken, or by starva- 
tion if payment is too long delayed. Finally, we 
have the practice described by Lord Teignmouth as 
one peculiarly or exclusively resorted to by Brah- 
mins. The sanctity of Brahminical life has now in 
fact pretty much taken, in Hindoo idea, the place once 
occupied by the sanctity of human life, and c sitting 
dharna,' when the English law first endeavoured to 
suppress it, was understood to be a special mode of 
oppression practised by Brahmins for a consideration 
in money. This is the view taken of it by the 
Indian Penal Code, which condemns it in the follow- 
ing terms (s. 508) : — 

1 Whoever voluntarily causes . . . any person to 
do anything which that person is not legally bound 
to do ... by inducing . . . that person to believe 
that he . . . will become by some act of the offender 
an object of Divine displeasure, if he does not do the 
thing which it is the object of the offender to cause 
him to do . . . shall be punished with imprisonment, 
&c.' 

It seems to me that a reasonable explanation may 
be given of the origin of these practices which now 
seem so strange. Let us not forget that all forms of 
Distress, the seizure of wife, child, or cattle, even 
when wholly unregulated by law, were improvements 
on older custom. The primitive proceeding was 



802 KAFIR LEGAL PROCEDURE. lect. x 

undoubtedly the unceremonious, unannounced, attack 
of the tribe or the man stung by injury on the tribe 
or the man who had inflicted it. Any expedient by 
which sudden plunder or slaughter was adjourned 
or prevented was an advantage even to barbarous 
society. Thus, it was a gain to mankind as a whole 
when its priests and leaders began to encourage the 
seizure of property or family, not for the purpose of 
permanent appropriation, but with a view to what we 
should now not hesitate to call extortion. Similarly, 
it was a step forwards when men learned to pause 
before attacking instead of attacking at once. We 
are told, in the Compendium of Kafir Laws and 
Customs published by Mr. Dugmore and other mis- 
sionaries (p. 38), that the regular procedure of a 
Kafir law-suit simulates an expedition in force of 
the plaintiff and his friends against the village to 
which the defendant belongs. c On their arrival they 
sit down together in some conspicuous position and 
await quietly the result of their presence. This 
... is the signal for mustering all the adult male 
residents that are forthcoming. These accordingly 
assemble and also sit down within conversing dis- 
tance.' After long silence a conversation ensues, 
and the proceeding, which is a perfectly peaceable 
one, is continued by a long series of technical for- 
malities and intricate pleadings. This silent pause of 



lect. x. FEUD LAW OF ALFRED. 303 

the attacking party is an early form of Notice, in 
itself one of the most valuable of institutions ; and 
with it is connected another primitive contrivance, 
shutting a man up in his house till he gives satisfac- 
tion, instead of setting on him at once. A very 
striking illustration of it is found in a law of Alfred, 
familiar to historical scholars (Kemble, l Saxons,' i. 
272; Thorpe, 'Ancient Laws,' i. 91):— 

6 Let the man who knows his foe to be home- 
sitting fight not before he have demanded justice of 
him. If he have power to beset his foe and besiege 
him in his house, let him keep him there for seven 
days but not attack him if he will remain indoors. 
If then, after seven days, he be willing to surrender 
and give up his weapons, let him be kept safe for 
thirty days, and let notice be given to his kinsmen 
and friends. But if the plaintiff have not power of 
his own, let him ride to the Ealdorman, and, if the 
Ealdorman will not aid him, let him ride to the Kin^ 
before he fights.' The passage ends with a provision 
of which the spirit, strange to say, survives in the 
modern Code making the loudest claim to civilised 
principle, the Code Napoleon (Code Penal, s. 324), 
to the effect that if the man who is homesitting be 
really shut up in his house with the complainant's 
wife, daughter, or sister, he may be attacked and 
killed without ceremony. 

The object of the Law of Alfred is plainly the 



304 DHARNA IN NATIVE INDIAN STATES. lbct. x. 

same with that aimed at by the ancient rule of 
Brihaspiti. The man who, if nature had her way, 
would be slain at once, is shut up in his house but 
left otherwise unharmed till he or his kinsmen pay 
the debt or compound for the money. The English 
rule is to be enforced by the civil power, the Ealdor- 
man or the King ; the Hindoo Brahminical rule by 
the fear of punishment in another world. The Irish 
law-tract retains the Brahminical rule as an alterna- 
tive in certain cases to Notice. But an institution 
which was perfectly intelligible in a society which 
included an order of lawyers who were also priests 
has lost all meaning when this society has been 
introduced by Christianity to a wholly new set of 
religious ideas. 

The course of our enquiry has led us backwards 
and forwards between the extreme Easterly and the 
extreme Westerly branches of the Aryan race. Let 
me now add one word to connect the Eastern usage 
with the most ancient law of the community which 
once occupied with its government nearly the whole 
space between the two. c Sitting dharna,' placed 
under the ban of British law, chiefly survives in 
British India in an exaggerated air of suffering worn 
by the creditor who comes to ask a debtor of higher 
rank for payment, and who is told to wait. But it is 
still common in the Native Indian States, and there 
it is pre-eminently an expedient resorted to by soldiers 



jlsct. x- DHARNA IN NATIVE INDIAN STATES. 805 

to obtain arrears of pay. You will remember that 
the ' pignoris capio ' of the Romans is stated by Gaius 
to have survived as a remedy in two classes of cases, 
one of them being the default of a military pay- 
master. 



303 SETTLED PROPERTY OF MARRIED WOMEN. LECT. Xt. 



LECTURE XL 

THE EARLY HISTORY OF THE SETTLED PROPERTY O* 
MARRIED WOMEN. 

The subject on which I am about to speak may per- 
haps convey one lesson. It may serve as a caution 
against the lax employment of the words ' ancient ' 
and ' modern.' There are few persons, I suppose, who, 
approaching the Settled Property of Married W omen 
without previous knowledge of its history, would not 
pronounce it one of the most modern of subjects. It 
has given rise to vehement controversy in our own 
day; some of the questions which it suggests are not 
yet solved ; and there are many here, I dare say, who 
believe that they remember the first dawn of sound 
ideas on these questions. Yet, as a matter of fact, 
the discussion of the settled property of married 
women is a very old discussion. I do not indeed say, 
considering the vast antiquity now claimed for the 
human race, that our very first forefathers troubled 
themselves about the matter; but nothing can be 
more certain than that very soon after those divisions 
of mankind which were destined to ultimate greatness 



ebct. II. ROMAN AND HINDOO LAW. 307 

are seen in possession of the institution which was 
the one condition of their progress to civilisation — 
the Family — they are discerned grappling with the 
very same problem, no doubt in an early form, which 
we ourselves have hardly yet succeeded in solving. 
This assertion, I may observe, is less incredible to a 
Frenchman, or indeed to a citizen of any Continental 
State, than it is possibly to an Englishman. The law 
of the Continent on the proprietary relations of hus- 
band and wife is in the main Roman law, very slightly 
transmuted ; and through the institutions of the Ro- 
mans the history of this branch of law may be traced 
to the earliest institutions of so much of the human 
race as has proved capable of civilisation. 

The Roman and Hindoo systems of law from 
which I propose to illustrate my subject are very 
far indeed from being the only sources from which 
information can be gathered concerning the infancy 
of mankind, or even concerning the Aryan race 
of men. But the evidence supplied by each of 
them is highly authentic, and, while both of them 
run back to what may fairly be called a vast an- 
tiquity, they both assume at their starting-point the 
existence of the institution, by no means apparently 
universal among savage men, out of which, as I said, 
all civilisation has grown — the Family. I need 
scarcely add that, even for historical purposes, their 
value is very unequal. 

x 2 



808 ROMAN LAW. leci. xi. 

There is no history so long, so continuous, and 
so authentic as that of the Eoman Law ; and yet it is 
not a little remarkable that till about half a century 
ago it was systematically treated, except by a small 
minority of jurists, as if it had no history at all. This 
was a consequence of its great juridical perfection. 
Let me pause to observe that, considering the time 
and pains spent in acquiring the Latin language, 
it is much to be regretted that so little is known 
of the chief branch of Latin literature. For it is 
really so expressed, and so put together, as to 
deserve the name of literature. Moreover, it was 
the only literature of the Romans which has any 
claim to originality; it was the only part of their 
literature in which the Romans themselves took 
any strong interest ; and it is the one part which 
has profoundly influenced modern thought. One 
result, however, of its symmetry and lucidity was 
that it was long regarded as a birth of pure in- 
tellect, produced, so to speak, at a single effort. Those 
who attempted to construct a history for it were few, 
and not of the highest credit. But it happened that 
in 1816, the great German historian, Niebuhr, travel- 
ling in Italy, had his attention attracted at Yerona 
to a manuscript of one of the Fathers, under the let- 
ters of which ancient writing appeared. This manu- 
script, when deciphered, proved to be a nearly perfect 
copy of an educational work, written in the second 



LECT. XI. 



HIISDOO LAW. 309 



century of our era, for young Eoman students of law, 
by one of the most famous of Roman lawyers, Gaius 
or Caius. At that period Roman jurisprudence re- 
tained enough of the traces of its most ancient state 
for it to be necessary that they should be explained 
to young readers by the author of such a treatise ; 
and it thus became possible to reconstruct, from the 
book of Gaius, the whole past history of Roman law 
with some completeness. Certainly, without Nie- 
buhr's discovery the subject of this lecture could 
never have been understood, or its original outline 
restored. 

Hindoo law, which I have placed by the side of 
Roman law, calls assuredly for no eulogy. It is full 
of monstrous iniquities, and has been perverted in all 
directions by priestly influence. But then a great 
deal of it is undoubtedly of prodigious antiquity, and, 
what is more important, we can see this ancient law 
in operation before our eyes. British legislation has 
corrected some of its excesses, but its principles are 
untouched, and are still left to produce some of their 
results. French law, as I said, is Roman law a little 
altered, but then it is the Roman law in its matured, 
developed, and refined condition, and the ancient in- 
stitutions of the Romans are only seen through it 
dimly. But some of the institutions which the 
Romans and Hindoos once had in common may be 



310 THE PATRIARCHAL FAMILY. lect. xi 

seen actually nourishing in India, under the proteo 
tion of English Courts of Justice. 

The two societies, Eoman and Hindoo, which I 
take up for examination, with the view of determining 
some of their earliest ideas concerning the property 
of women, are seen to be formed at what for practical 
purposes is the earliest stage of their history, by the 
multiplication of a particular unit or group, the Pa- 
triarchal Family. There has been much speculation 
of late among writers belonging to the school of so< 
called pre-historic inquiry as to the place in the his- 
tory of human society to which this peculiar group, 
the Patriarchal Family, is entitled. Whether, how- 
ever, it has existed universally from all time — whether 
it has existed from all time only in certain races — 
or whether in the races among whose institutions it 
appears, it has been formed by slow and gradual 
development — it has, everywhere, where we find it, 
the same character and composition. The group 
consists of animate and inanimate property, of wife, 
children, slaves, land, and goods, all held together by 
subjection to the despotic authority of the eldest male 
of the eldest ascending line, the father, grandfather, 
or even more remote ancestor. The force which 
binds the group together is Power. A child adopted 
into the Patriarchal family belongs to it as perfectly 
as the child naturally born into it, and a child who 
severs his connection with it is lost to it alto- 



lect. xi. DECAY OF THE FAMILY. 311 

gether. All the larger groups which make up the 
primitive societies in which the Patriarchal family 
occurs, are seen to be multiplications of it, and to 
be, in fact, themselves more or less formed on its 
model. 

But, when first we view the Patriarchal Family 
through perfectly trustworthy evidence, it is already 
in a state of decay. The emancipation or enfranchise- 
ment of male children from parental power by the 
parents' voluntary act has become a recognised usage, 
and is one among several practices which testify a 
relaxation of the stricter ideas of a more remote anti- 
quity. Confining our attention to women, we find 
that they have began to inherit a share of the pro- 
perty of the family concurrently with their male 
relatives ; but their share appears, from several indi- 
cations, to have been smaller, and they are still 
controlled both in the enjoyment of it and in the 
disposal. Here, however, Ave come upon the first 
trace of a distinction which runs through all legal 
history. Unmarried women, originally in no differ- 
ent position from married women, acquire at first a 
much higher degree of proprietary independence. The 
unmarried woman is for life under the guardianship 
of her male relatives, whose primitive duty was mani- 
festly to prevent her alienating or wasting her posses- 
sions, and to secure the ultimate reversion of these 



312 EARLY ROMAN MARRIAGE. lect. ii, 

possessions to the family to whose domain those pos- 
sessions had belonged. But the powers of the guar- 
dians are undergoing slow dissolution through the two 
great sapping agencies of jurisprudence, Legal Fictions 
and Equity. To those who are alive to the permanence 
of certain legal phenomena there is no more interest- 
ing passage in ancient law than that in which the old 
lawyer Gaius describes the curious forms with which 
the guardian's powers were transferred to a trustee, 
whose trust was to exercise them at the pleasure of 
the ward. Meantime, there can be no reasonable 
doubt that among the Romans, who alone supply us 
with a continuous history of this branch of jurispru- 
dence, the great majority of women became by mar- 
riage, as all women had originally become, the 
daughters of their husbands. The Family was 
based, less upon actual relationship than upon power, 
and the husband acquired over his wife the same de- 
spotic power which the father had over his children. 
There can be no question that, in strict pursuance of 
this conception of marriage, all the wife's property 
passed at first absolutely to the husband, and became 
fused with the domain of the new family; and at this 
point begins, in any reasonable sense of the words, 
the early history of the property of married women. 
The first sign of change is furnished by the em- 
ployment of a peculiar term to indicate the relation 
of husband to wife, as different from the relation of 



lect. xi. CHANGE IN TECHNICAL LANGUAGE 7 . 313 

father to child, or master to slave. The term, a 
famous one in legal history, is manus, the Latin word 
for l hand,' and the wife was said convenire in manum, 
to come under the hand of her husband. I have 
elsewhere expressed a conjectural opinion that this 
word manus or hand, was at first the sole general 
term for patriarchal power among the Romans, and 
that it became confined to one form of that power by 
a process of specialisation easily observable in the 
history of language. The allotment of particular 
names to special ideas which gradually disengage 
themselves from a general idea is apparently deter- 
mined by accident. We cannot give a reason, other 
than mere chance, why power over a wife should have 
retained the name of manus, why power over a child 
should have obtained another name, poiestas, why 
power over slaves and inanimate property should in 
later times be called dominium. But, although the 
transformation of meanings be capricious, the process 
of specialisation is a permanent phenomenon, in the 
highest degree important and worthy of observation. 
When once this specialisation has in any case been 
effected I venture to sav that there can be no accu- 
rate historical vision for him who will not, in mental 
contemplation, re- combine the separated elements. 
Taking the conceptions which have their root in 
the family relation — what we call property, what we 
call marital right, what we call parental authority, 



314 PRIMITIVE BLENDING OF NOTIONS. lect. XI, 

were all originally blended in the general conception 
of patriarchal power. If, leaving the Family, we 
pass on to the group which stands next above it 
in the primitive organisation of society — that com- 
bination of families, in a larger aggregate, for which 
at present I have no better name than Village 
Community — we find it impossible to understand 
the extant examples of it, unless we recognise that, 
in the infancy of ideas, legislative, judicial, executive, 
and administrative power are not distinguished, but 
considered as one and the same. There is no distinc- 
tion drawn in the mind between passing a law, affirm- 
ing a rule, trying an offender, carrying out the 
sentence, or prescribing a set of directions to a 
communal functionary. All these are regarded as 
exercises of an identical power lodged with some 
depositary or body of depositaries. When these 
communities become blended in the larger groups 
which are conveniently called political, the re-com- 
bination of ideas originally blended becomes infinitely 
more difficult, and, when successfully effected, is 
among the greatest achievements of historical insight. 
But I venture to say that, whether we look to that 
immortal system of village communities which be- 
came the Greek or Hellenic world — or that famous 
group of village-communities on the Tiber, which, 
grown into a legislating empire, has influenced the 
destinies of mankind far more by altering their 



lect. xi USURPATION AND MAEEIAGE. 315 

primitive customs than by conquering them — or to 
the marvellously complex societies to which we be- 
long, and in which the influence of the primitive 
family and village notions still makes itself felt amid 
the mass of modern thought — still I venture to say, 
that one great secret for understanding these collec- 
tions of men, is the reconstruction in the mind of 
ancient, general, and blended ideas by the re-combi- 
nation of the modern special ideas which are their 
offshoots. 

The next stage in the legal history of Roman 
civil marriage is marked by the contrivance, very 
familiar to students of Koman law, by which the 
process of ' coming under the hand ' was dispensed 
with, and the wife no longer became in law her hus- 
band's daughter. From very early times it would 
appear to have been possible to contract a legal mar- 
riage by merely establishing the existence of conjugal 
society. But the effect on the wife of continuous 
conjugal society was, in old Roman law, precisely the 
same as the effect on a man of continuous servile oc- 
cupation in a Eoman household. The institution called 
Usucapion, or (in modern times) Prescription, the 
acquisition of ownership by continuous possession, 
lay at the root of the ancient Roman law, whether of 
persons or of things ; and, in the first case, the wo- 
man became the daughter of the chief of the house ; 
in the last case the man became his slave. The legal 



316 METHOD OF DEFEATING USUCAPION. lbct. xii 

result was only not the same in the two cases because 
the shades of power had now been discriminated, and 
paternal authority had become different from the 
lordship of the master over the slave. In order, 
however, that acquisition by Usucapion might be 
consummated, the possession must be continuous; 
there was no Usucapion where the possession had 
been interrupted — where, to use the technical phrase 
(which has had rather a distinguished history), there 
had been usurpation, the breaking of usus or enjoy- 
ment. It was possible, therefore, for the wife, by 
absenting herself for a definite period from her hus- 
band's domicile, to protect herself from his acquisition 
of paternal power over her person and property. The 
exact duration of the absence necesary to defeat the 
Usucapion — three days and three nights — is provided 
for in the ancient Koman Code, the Twelve Tables, 
and doubtless the appearance of such a rule in so 
early a monument of legislation is not a little re- 
markable. It is extremely likely, as several writers 
on the ancient law conjectured, that the object of the 
provision was to clear up a doubt, and to declare with 
certainty what period of absence was necessary to 
legalise an existing practice. But it would never do 
to suppose that the practice was common, or rapidly 
became common. In this, as in several other cases, 
it is probable that the want of qualification in the 
clause of the Twelve Tables is to be explained by 



lect. XI. NEWER ROMAX MARRIAGE. 317 

the reliance of the legislator on custom, opinion, or 
religious feeling to prevent the abuse of his legis- 
lation. The wife who saved herself from coming 
under marital authority no doubt had the legal status 
of wife, but the Latin antiquarians evidently believed 
that her position was not at first held to be respec- 
table. By the time of Gaius, however, any associa- 
tion of imperfect respectability with the newer form 
of marriage was decaying or had perished ; and, in 
fact, we know that marriage, ' without coming under 
the hand/ became the ordinary Roman marriage, and 
that the relation of husband and wife became a 
voluntary conjugal society, terminable at the pleasure 
of either party by divorce. It was with the state of 
conjugal relations thus produced that the growing 
Christianity of the Roman world waged a war ever 
increasing in fierceness; yet it remained to the last 
the basis of the Roman legal conception of marriage, 
and to a certain extent it even colours the Canon law, 
founded though it be, on the whole, on the sacra- 
mental view of marriage. 

For our present purpose it is necessary to regard 
this newer marriage just when it had superseded the 
ancient and stricter usages of wedlock, and just before 
it began to be modified by the modern and much 
severer principles of the Christian community. For 
at this point in the history of marriage we come upon 
the beginnings of that system of settling the property 



318 PEOPERTT OF MAERIED WOMEN. lbot. XI, 

of married women which has supplied the greatest 
part of Continental Europe with its law of marriage 
settlement. It appears an immediate consequence 
from thoroughly ascertained legal principles that, as 
soon as the wife ceased to pass by marriage into her 
husband's family, and to become in law his daughter, 
her property would no longer be transferred to him. 
In the earlier period of Eoman law, this property, 
present and prospective, would have remained with 
her own family, and, if she was no longer under 
direct parental authority, would have been admin- 
istered by her guardians for the behoof of her male 
relatives. As we know, however, and as I be- 
fore stated, the power of guardians was gradually 
reduced to a shadow. The legal result would seem 
to have been that the woman would be placed in the 
same position as a French wife at this day under what 
the French Code calls the regime of Mens separes, or 
as an English wife whose property has been secured 
to her separate use by an appropriate marriage set- 
tlement or by the operation of the new Married 
Women's Property Act. But, though this was the 
legal consequence, it would be a social anachronism 
to assume that in practice it followed rapidly or gen- 
erally. The original object of the marriage 'without 
coming under the hand' was doubtless to prevent 
the acquisition of excessive proprietary power by the 
husband, not to deprive him of all such power, and 



lect. n. THE DOTAL ESTATE. 318 

indeed the legal result of this marriage, unless prac- 
tically qualified in some way, would unquestionably 
have been far in advance of social feeling. Here, 
then, we come upon an institution which, of all purely 
artificial institutions, has had perhaps the longest and 
the most important history. This is the dos, or dotal 
estate, something very different from our 'dower/ 
It has become the dot of French law, and is the 
favourite form of settling the property of married 
women all over the Continent of Europe. It is a 
contribution by the wife's family, or by the wife her- 
self, intended to assist the husband in bearing the 
expenses of the conjugal household. Only the 
revenue belonged to the husband, and many minute 
rules, which need not be specified here, prevented 
him from spending it on objects foreign to the pur- 
pose of the settlement. The corpus or capital of the 
settled property was, among the Romans (as now in 
France), incapable of alienation, unless with the 
permission of a court of justice. If any part of the 
wife's property was not settled on her as dos, it 
became her parapherna. Parapherna means some- 
thing very different from our c paraphernalia,' and is 
the Mens separes of French law. It was that portion 
of a wife's property which was held by her under 
the strict law applicable to a woman marrying with- 
out ' coming under the hand.' The authority of her 
guardians having died out, and this part of her pro- 



320 PROQEESS OF KOMAtf LAW. lect. x* 

perty not having, by the assumption, been conveyed 
to the husband as dos, it remained under her exclu- 
sive control, and at her exclusive disposal. It is only 
quite recently, under the Married Women's Property 
Act, that we have arrived at a similar institution, 
since money settled to a wife's separate use, though 
practically the same thing, required a settlement to 
create it. 

I have now abridged a very long, and, in some 
portions, a very intricate history. The Roman law 
began by giving all the wife's property to the hus- 
band, because she was assumed to be, in law, his 
daughter. It ended in having for its general rule 
that all the wife's property was under her own con- 
trol, save when a part of it had been converted by 
settlement into a fund for contributing to the ex- 
penses of the conjugal household. But, no doubt, 
the exception to the general rule was the ordinary 
practice. In all respectable households, as now on 
the Continent, there was a settlement by way of dos. 
Not that we are to suppose there was among the 
Romans any such form of contract as we are accus- 
tomed to under the name of Marriage Settlement. 
The mechanism was infinitely simpler. A few words 
on paper would suffice to bring any part of the wife's 
property under the well-ascertained rules supplied by 
the written law for dotal settlements, and nothing 
more than these words would be needed, unless the 



/ 
lect. XI. HIM)00 LAW OF WOMAN'S PROPERTY. 321 



persons marrying wished to vary the provisions of 
the law by express agreement. This simple, but- 
most admirable, contrivance of having, so to speak, 
model settlements set forth ready made in the law, 
which may be adopted or not at pleasure, charac- 
terises the French Code Napoleon, and it was in- 
herited by the French from the Romans. 

Warning you that the account which I have given 
you of the transitions through which the Roman law 
of settled property passed, is, from the necessity of 
the case, fragmentary, I pass to the evidence of early 
ideas on our subject which is contained in the Hindoo 
law. The settled property of a married woman, in- 
capable of alienation by her husband, is well-known 
to the Hindoos under the name of Stridhan. It is 
certainly a remarkable fact that the institution seems 
to have been developed among the Hindoos at a 
period relatively much earlier than among the Ro- 
mans. But instead of being matured and improved, 
as it was in the Western society, there is reason to 
think that in the East, under various influences 
which may partly be traced, it has gradually been 
reduced to dimensions and importance far inferior 
to those which at one time belonged to it. 

The definition of Stridhan, or i woman's property/ 
given in one of the oldest and most authoritative of 
the Hindoo juridical treatises, the Mitakshara, is as 
follows : ' That which is given (to the wife) by the 

Y 



322 THE STRIDHAN. lect. xl 

father, the mother, the husband, or a brother, at the 
time of the wedding, before the nuptial fire. 7 Up to 
this point, the doctrine has the concurrence of all the 
schools of Hindoo law, but the compiler of the Mitak- 
shara adds a proposition not found elsewhere : c also 
property which she may have acquired by inheritance, 
purchase, partition, seizure, or finding, is denomi- 
nated by Manu and the others " woman's pro- 
perty."' (Mitakshara, xi. 2.) These words, attri- 
buted, you see, to the mythical legislator, Manu, 
have excited the most vehement controversies amons: 
later Brahminical commentators, and have caused 
considerable perplexity to Anglo-Indian Judges, 
bound as they are to elicit consistent doctrine from 
the Hindoo legal texts. ' All the property which a 
woman may ha^e acquired by inheritance, purchase, 
partition, seizure, or finding,' is a comprehensive 
description of all the forms of property as defined by 
the modes of acquisition, and, if all this be Stridhan, 
it follows that the ancient Hindoo law secured to 
married women, in theory at all events, an even 
greater degree of proprietary independence than 
that given to them by the modern English Married 
Women's Property Act. No doubt there is much 
difficulty in understanding this. The existing Hin- 
doo written law, which is a mixed body of religious, 
moral, and legal ordinances, is pre-eminently distin- 
guished by the strictness with which it maintains a 



1ECT. xi. STBIDHAN Iff THE ANGLO-IITOIAISr COUETS. 323 

number of obligations plainly traceable to the ancient 
despotism of the Family, and by its excessive harsh- 
ness to the personal and proprietary liberty of wo- 
men. Among the Aryan sub-races, the Hindoos 
may be as confidently asserted as the Romans to 
have had their society organised as a collection of 
patriarchally governed families. If, then, at any 
early period, the married woman had among the 
Hindoos her property altogether enfranchised from 
her husband's control, it is not easy to give a reason 
why the obligations of the family despotism were 
relaxed in this one particular. In point of fact, there 
is no clue to the mystery so long as we confine our 
attention to the Hindoo law, and no course is open to 
a Judge except to take his stand on the one ancient 
authority I have quoted or to follow the great bulk 
of modern authorities who repudiate the doctrine of 
the Mitakshara on this point. The Anglo-Indian 
Courts have now substantially decided that Hindoo 
law (with the possible exception of that current in 
Western India) limits the Stridhan to property given 
to the woman at her marriage either by her family 
or by her husband ( c Madras High Court Reports, 7 
iii. 312). I think, however, that if we extend our 
examination to other bodies of Aryan custom, we may 
partly understand the amplitude which the Mitak- 
shara, one of the most archaic of Hindoo compendia, 
assigns to the Stridhan. A full enquiry would take 

Y 2 



324 PRE-HISTORIC OEIGIN OF STRIDHAtf. lect. xl> 

me much beyond the limits which I have proposed to 
myself in this Lecture, but its results would shortly 
be these. Among the Aryan communities as a whole, 
we find the earliest traces of the separate property of 
women in the widely diffused ancient institution 
known as the Bride-Price. Part of this price, which 
was paid by the bridegroom either at the wedding or 
the day after it, went to the bride's father as com- 
pensation for the Patriarchal or Family authority 
which was transferred to the husband, but another 
part went to the bride herself and was very generally 
enjoyed by her separately and kept apart from her 
husband's property. It further appears that under a 
certain number of Aryan customs the proprietary 
rights of other kinds which women slowly acquired 
were assimilated to their rights in their portion of 
the Bride-Price, probably as being the only existing 
type of woman's property. The exact extent of 
the separate ownership which the ancient Irish law 
allowed to married women is still uncertain, but un- 
doubtedly they had some power of dealing with their 
own property without the consent of their husbands, 
and this was one of the institutions expressly de- 
clared by the Judges to be illegal at the beginning 
of the seventeenth century. 

If then the Stridhan had a pre -historic origin in 
the Bride-Price, its growth and decay become more 
intelligiole. First of all it was property conferred 



leht. xi. BRAHMIN DISLIKE OF WOMAN'S PROPERTY. 325 

on the wife by the husband k at the nuptial fire/ as 
the sacerdotal Hindoo lawyers express it. Next it 
came to include what the Romans called the dos, 
property assigned to the wife at her marriage by her 
own family. The next stage may very well have 
been reached only in certain parts of India, and the 
rules relating to it may only have found their way 
into the doctrine of certain schools ; but still there is 
nothing contrary to the analogies of legal history in 
the extension of the Stridhan until it included all the 
property of a married woman. The really interesting 
question is how came the law to retreat after ap- 
parently advancing farther than the Middle Roman 
Law in the proprietary enfranchisement of women, 
and what are the causes of the strong hostility of the 
great majority of Hindoo lawyers to the text of the 
Mitakshara, of which the authority could not be 
wholly denied ? There are in fact clear indications 
of a sustained general effort on the part of the Brah- 
minical writers on mixed law and religion, to limit 
the privileges of women which they seem to have 
found recognised by older authorities. The attention 
of English and European students of the Hindoo 
law books was first attracted to this subject by a 
natural desire to scrutinise the sacred texts upon 
which the Brahmin learned were in the habit of in- 
sisting in defence of the abominable practice of Suttee 
or widow-burning. The discovery was soon made 



326 ENFRANCHISEMENT OF WOMEN. xect. Xi 

that the oldest monuments of law and religion gave 
no countenance to the rite, and the conclusion was at 
once drawn that, even on Hindoo principles, it was 
an unlawful innovation. This mode of reasoning 
undoubtedly gave comfort to many devout Hindoos, 
whom no secular argument could have reconciled to 
the abandonment of a custom of proved antiquity ; 
but still, in itself it was unsound. The disuse of all 
practices which a scholar could show to be relatively 
modern would dissolve the whole Hindoo system. 
These inquiries, pushed much farther, have shown 
that the Hindoo laws, religious and civil, have for 
centuries been undergoing transmutation, develop- 
ment, and, in some points, depravation at the hands 
of successive Brahminical expositors, and that no 
rules have been so uniformly changed — as we should 
say, for the worse — as those which affect the legal 
position of women. 

It will probably be conceded by all who have paid 
any attention to our subject, that the civilised so- 
cieties of the West, in steadily enlarging the personal 
and proprietary independence of women, and even in 
granting to them political privilege, are only follow- 
ing out still farther a law of development which they 
have been obeying for many centuries. The society, 
which once consisted of compact families, has got ex- 
tremely near to the condition in which it will consist 
exclusively of individuals, when it has finally and 



lect. xi. DEVELOPMENT OF HIOTOO LAW., 327 

completely assimilated the legal position of women to 
the legal position of men. In addition to many other 
objections which may be nrged against the common 
allegation that the legal disabilities of women are 
merely part of the tyranny of sex over sex, it is his- 
torically and philosophically valueless, as indeed are 
most propositions concerning classes so large as sexes. 
What really did exist is the despotism of groups over 
the members composing them. What really is being 
relaxed is the stringency of this despotism. Whether 
this relaxation is destined to end in utter dissolu- 
tion — whether, on the other hand, under the influence 
either of voluntary agreement or of imperative law, 
society is destined to crystallise in new forms — are 
questions upon which it is not now material to enter, 
even if there were any hope of solving them. All we 
need at present note is that the so-called enfranchise- 
ment of women is merely a phase of a process which 
has affected very many other classes, the substitution 
of individual human beings for compact groups of 
human beings as the units of society. Now, it is true 
that in the legal institutions of the Hindoos (political 
institutions, I need scarcely say, for many centuries 
they have had none) the despotism of the family group 
over the men and women composing it is maintained 
in greater completeness than among any society of 
similar civilisation and culture. Yet" there is abun- 
dant evidence that the emancipation of the individual 



328 PER STIRPES AND PER CAPITA. llct. XI, 

from the family had proceeded some way, even before 
the country had come under the Western influences 
through the British dominion. If I were to give 
you the full proof of this, I should have to take you 
through much of the detail of Hindoo law. I will 
mention one indication of it, because few are aware 
that the peculiarity in question serves as a sort of 
test by which we can distinguish very ancient or un- 
developed from comparatively matured and developed 
law. 

All beginners in law have heard of the difference 
between distributing an inheritance per stirpes and 
distributing it per capita. A man has two sons, one 
of whom has eight children, and the other two. The 
grandfather dies, his two sons having died before 
him, and the grandfather's property has to be divided 
between the grandchildren. If the division is per 
stirpes the stocks of the two sons will be kept sepa- 
rate, and one half of the inheritance will be distri 
buted between the eight grandchildren, and the other 
half between the two. If the division is per capita 
the property will be equally divided between the 
whole ten grandchildren, share and share alike. Now 
the tendency of matured and developed law is to give 
a decided preference to distribution per stirpes ; it is 
only with remote classes of relatives that it abandons 
the distinctions between the stocks and distributes 
the property per capita. But in this, as in several 



lect. xi. HIFDOO PRESERVATION OF THE STOCKS. 32S 

/ 

other particulars, very ancient and undeveloped law 
reverses the ideas of the modern jurist, and uniformly 
prefers distribution per capita, exactly equal division 
between all the surviving members of the family; and 
this is apparently on the principle that, all having been 
impartially subject to a despotism which knew no 
degrees, all ought to share equally on the dissolution 
of the community by the death of its chief. A pre- 
ference for division per stirpes, a minute care for the 
preservation of the stocks, is in fact very strong evi- 
dence of the growth of a respect for individual in- 
terests inside the family, distinct from the interests 
of the family group as a whole. This is why the place 
given to distribution per stirpes shows that a given 
system of law has undergone development, and it so 
happens that this place is very large in Hindoo law, 
which is extremely careful of the distinction between 
stocks, and maintains them through long lines of 
succession. 

Let us now turn to the causes which in the Hindoo 
law, and in the great alternative Aryan system, the 
Roman law, have respectively led to the disengage- 
ment of the individual from the group. So far as 
regards the Roman institutions, we know that among 
the most powerful solvent influences were certain 
philosophical theories, of Greek origin, w r hich had 
deep effect on the minds of the jurists who guided 
the development of the law. The law, thus trans- 



330 ROMAN LEGISLATION. lect. xi. 

formed by a doctrine which had its most distinct ex- 
pression in the famous proposition, c all men are 
equal/ was spread over much of the world by Roman 
legislation. The empire of the Romans, for one reason 
alone, must be placed in a totally different class from 
the Oriental despotisms, ancient and modern, and 
even from the famous Athenian Empire. All these 
last were tax-taking empires, which exercised little 
or no interference in the customs of village-communi- 
ties or tribes. But the Roman Empire, while it was 
a tax-taking, was also a legislating empire. It crushed 
out local customs, and substituted for them institutions 
of its own. Through its legislation alone it effected so 
great an interruption in the history of a large part of 
mankind, nor has it had any parallel except — and the 
comparison is very imperfect — the modern British 
Empire in India. There is no reason to suppose 
that philosophical theory had any serious influence 
on the jurisprudence of the Hindoos. I speak with 
reserve on the subject, but I believe that none of the 
remarkable philosophical theories which the genius of 
the race produced are founded on a conception of the 
individual as distinct from that of the group in which 
he is born. From those of them with which I happen 
to be acquainted, I should say that their charac- 
teristics are of exactly the reverse order, and that 
they have their nearest counterpart in certain philo- 
sophical systems of our own day, under which the 



lect. xi. EFFECTS OF RELIGION ON LEGAL DOCTRINE. 331 

individual seems lost in some such conception as that 
of Humanity. What, then, was the influence (for 
some influence there certainly was) which, operating 
on the minds of the Brahminical jurists, led them to 
assign to the individual • rights distinct from those 
which would have belonged to him through mere 
membership in the family group ? I conceive that 
it was the influence of Religion. Wherever among 
any part of Hindoo society there prevailed the con- 
viction of responsibility after death — whether that 
responsibility was to be enforced by direct rewards 
and punishments, or through the stages of the me- 
tempsychosis — the conception of the individual, who 
was to suffer separately and enjoy separately, was 
necessarily realised with extreme distinctness. 

The portions of the race strongly affected by re- 
ligious belief of this kind were exactly those for which 
the Brahminical jurists legislated, and at first they 
probably legislated for these alone. But with the 
notion of responsibility after death the notion of ex- 
piation was always associated. Building upon this 
last notion, the Brahminical commentators gradually 
transformed the whole law until it became an exempli- 
fication of what Indian lawyers call the doctrine of 
Spiritual Benefit. Inasmuch as the condition of the 
dead could be ameliorated by proper expiatory rites, 
the property descending or devolving on a man came 
to be regarded by these writers partly as a fund for 



332 KELIGIOUS OBJECTS OF PROPERTY. lect. XL 

paying tlie expenses of the ceremonial by which the 
soul of the person from whom the inheritance came 
could be redeemed from suffering or degradation, and 
partly as a reward for the proper performance of the 
sacrifices. There ought to be nothing to surprise us 
in the growth of such a doctrine, since it is only 
distinguished, by its logical completeness, from one 
which had great influence on Western jurisprudence. 
The interest which from very early times the Church 
claimed in the moveable or personal property of 
deceased persons is best explained by its teaching 
that the first and best destination of a dead man's 
goods was to purchase masses for his soul, and out 
of this view of the proper objects of wealth the 
whole testamentary and intestate jurisdiction of the 
Ecclesiastical Courts appears to have grown. But 
in India the law constructed on these principles 
became extremely unfavourable to the ownership 
of property by women, apparently because its priestly 
authors thought that women, through their physical 
weakness and their seclusion (which was doubtless 
regarded as unavoidable), would have much greater 
difficulty than men, amid a society always more or 
less disturbed, in applying a proper share of the 
property to the funeral ceremonies of the person 
who had transmitted it. The reasoning on the sub- 
ject current even in comparatively ancient times is 
thus given in the Mitakshara : ' The wealth of a 



lect. xi. BRAHMIN VIEW OF WOMAN S PROPERTY. 333 

regenerate man is designed for religious uses, and a 
woman's succession to such property is unfit because 
she is not competent to the performance of religious 
rites.' The compiler of the Mitakshara who has 
preserved the liberal rule as to Stridhan which I 
before referred to, combats this doctrine, not, how- 
ever, by affirming the capacity of women for sacrifice, 
but by denying that all property is intended for 
religious uses, and by pointing out that certain acts 
which a female owner can do are of a quasi-religious 
character, e.g., she may dig tanks. (Mitakshara, ii. 
1, 22, 23, 24. ) And, putting him aside, the Brahmi- 
nical commentators who succeed one another in the 
Hindoo juridical schools show a visibly increasing 
desire to connect all property with the discharge of 
sacrificial duties, and with this desire the reluctance 
to place property in the hands of women is somehow 
connected. 

On the whole the successive generations of Hin- 
doo lawyers show an increasing hostility to the insti- 
tution of the Stridhan, not by abolishing it, but by 
limiting to the utmost of their power the circum- 
stances under which it can arise. Minute distinc- 
tions are drawn between the various modes in which 
property may devolve upon a woman, and the condi- 
tions under which such property may become Stridhan 
made rare and exceptional. The aim of the law- 
yers was to add to the family stock, and to place 



334 RIGHTS OF THE CHILDLESS WIDOW. lect. XI. 

under the control of the husband as much, as they 
could of whatever came to the wife by inheritance 
or gift ; but whenever the property does satisfy the 
multifarious conditions laid down for the creation 
of the Stridhan, the view of it as emphatically 
' woman's property ' is carried out with a logical 
consistency very suggestive of the character of the 
ancient institution on which the Brahminical jurists 
made war. Not only has the woman singularly full 
power of dealing with the Stridhan — not only is the 
husband debarred from intermeddling with it, save in 
extreme distress — but, when the proprietress dies, 
there is a special order of succession to her property, 
which is manifestly intended to give a preference, 
wherever it is possible, to female relatives over males. 
Let me add that the account which I have given 
you of the probable liberality of the Hindoo institu- 
tions to females at some long past period of their 
development, and of the dislike towards this liberality 
manifested by the Brahminical lawyers, is not to be 
regarded as fanciful or purely conjectural, although, 
doubtless, we can only guess at the explanation of it. 
It is borne out by a very considerable number of 
indications, one of which I mention as of great but 
very painful interest. The most liberal of the Hindoo 
schools of jurisprudence, that prevailing in Bengal 
Proper, gives a childless widow the enjoyment of her 
husband's property, under certain restrictive condi- 



lect. H. SUTTEE IN BENGAL. 335 

tions, for her life ; and in this it agrees with many 
bodies of unwritten local custom. If there are male 
children, they succeed at once; but if there are none 
the widow comes in for her life before the collateral 
relatives. At the present moment, marriages among 
the upper classes of Hindoos being very commonly 
infertile, a considerable portion of the soil of the 
wealthiest Indian province is in the hands of childless 
widows as tenants for life. But it was exactly in 
Bengal Proper that the English, on entering India, 
found the Suttee, or widow-burning, not merely an 
occasional, but a constant and almost universal prac- 
tice with the wealthier classes, and, as a rule, it was 
only the childless widow, and never the widow with 
minor children, who burnt herself on her husband's 
funeral pyre. There is no question that there was the 
closest connection between the law and the religious 
custom, and the widow was made to sacrifice herself 
in order that her tenancy for life might be got out 
of the way. The anxiety of her family that the rite 
should be performed, which seemed so striking to the 
first English observers of the practice, was, in fact, 
explained by the coarsest motives ; but the Brahmins 
who exhorted her to the sacrifice were undoubtedly 
influenced by a purely professional dislike to her en- 
joyment of property. The ancient rule of the civil 
law, which made her tenant for life, could not be got 
rid of, but it was combated by the modern institution 



336 ROMAN COMPULSORY DOTATION. lect. xx. 

which made it her duty to devote herself to a fright- 
ful death. 

If the Stridhan of the Hindoos is a form of marrie< 1 
women's separate property, which has been disliked 
and perverted by the professional classes who had the 
power to modify it, the institution which was first the 
dos of the Romans, and is now the dot of Continental 
Europe, has received a singular amount of artificial 
encouragement. I have endeavoured to describe to 
you how it originated, but I have yet to state that 
it entered into one of the most famous social experi- 
ments of the Roman Empire. A well-known statute 
of the Emperor Augustus, celebrated by Horace in 
an official ode as the prince's greatest legislative 
achievement, had for its object the encouragement and 
regulation of marriage and the imposition of penalties 
on celibacy. Among the chief provisions of this 
' Lex Julia et Papia Poppcea ' — to give its full title — 
was a clause compelling opulent parents to create 
portions, or dotes, for their marriageable daughters. 
This provision of a statute, which very deeply affected 
the Roman law in many ways, must have met with 
general approval, for at a later date we find the same 
principle applied to the donatio propter nuptias, or 
settlement on the married couple from the husband's 
side. In the matured Roman law, therefore, singular 
as it may seem to us, parents were under a statutory 
obligation to make settlements on their children. 



lect. xi. THE CHUKCH AND THE INTERESTS OF WIDOWS. 337 

It has been rather the fashion to speak of these 
experiments of the Roman Emperors on public mo- 
rality as if they totally miscarried — I suppose, from 
some idea that the failure added to the credit of 
the moral regeneration effected by Christianity. But, 
as a matter of fact, the Christian Church conferred 
few civil benefits of greater moment to several 
generations of mankind than in keeping alive the 
traditions of the Roman legislation respecting settled 
property, and in strenuously exerting itself to extend 
and apply the principles of these disciplinary laws. 
There can be no serious question that, in its ultimate 
result, the disruption of the Roman Empire was very 
unfavourable to the personal and proprietary liberty 
of women. I purposely say, l in its ultimate result/ 
in order to avoid a learned controversy as to their 
position under purely Teutonic customs. It is very 
possible that the last stages of the process, which it 
is difficult to call anything but feudalisation, were 
more unfavourable to women than the earlier changes, 
which were exclusively due to the infusion of Ger- 
manic usage; but, at any rate, the place of women 
under the new system when fully organised was worse 
than it was under Roman law, and would have been 
very greatly worse but for the efforts of the Church. 
One standing monument of these efforts we have 
constantly before us in the promise of the husband in 
the Marriage service, ; With all my worldly goods, I 

z 



338 DOS AND DOAEIUM. lect. xi. 

thee endow; ' a formula which sometimes puzzles the 
English lawyer, from its want of correspondence with 
anything which he finds among the oldest rules of 
English law. The words have, indeed, been oc- 
casionally used in English legal treatises, as the text 
of a disquisition on the distinction between Roman 
dos, to which they are supposed to refer, and the 
doarium, which is the ' dower ' of lands known to 
English law. The fact is, however, that the tradition 
which the Church was carrying on was the general 
tradition of the Eoman dos, the practical object being 
to secure for the wife a provision of which the hus- 
band could not wantonly deprive her, and which 
would remain to her after his death. The bodies of 
customary law which were built up over Europe were, 
in all matters of first principle, under ecclesiastical 
influences ; but the particular applications of a prin- 
ciple once accepted were extremely various. The 
dower of lands in English law, of which hardly a 
shadow remains, but under which a wife surviving 
her husband took a third of the rents and profits of 
his estates for life, belonged to a class of institutions 
widely spread over Western Europe, very similar in 
general character, often designated as doarium, but 
differing considerably in detail. They unquestionably 
had their origin in the endeavours of the Church to 
revive the Roman institution of the compulsory dos y 
which, in this sense, produced the doarium, even 



lect. XI. THE PRACTICE OF DOTATION. , 33S 

though the latter may have had a partially Germanic 
origin, and even though it occasionally assume (as it 
unquestionably does) a shape very different from the 
original institution. I myself believe that another 
effect of this persistent preaching and encouragement 
is to be found in the strong feeling which is diffused 
through much of Europe, and specially through the 
Latinised societies, in favour of dotation, or portioning 
of daughters, a feeling which seldom fails to astonish 
a person acquainted with such a country as France by 
its remarkable intensity. It is an economical power 
of considerable importance, for it is the principal 
source of those habits of saving and hoarding which 
characterise the French people, and I regard it as 
descended, by a long chain of succession, from the 
obligatory provisions of the marriage law of the 
Emperor Augustus. 

The importance and interest of our subject, when 
treated in all its bearings and throughout its whole 
history, are quite enough to excuse me, I trust, for 
having detained you with an account of its obscure 
beginnings. It has been said that the degree in 
which the personal immunity and proprietary capacity 
of women are recognised in a particular state or com- 
munity is a test of its degree of advance in civilisation ; 
and, though the assertion is sometimes made without 
the qualifications which are necessary to give it value, 
it is very far indeed from being a mere gallant com- 

z2 



340 ENFRANCHISEMENT OF WOMEN. lect. Xi 

monplace. For, inasmuch as no class of similar im- 
portance and extent was, in the infancy of society, 
placed in a position of such absolute dependence as 
the other sex, the degree in which this dependence 
has step by step been voluntarily modified and re- 
laxed, serves undoubtedly as a rough measure of 
tribal, social, national capacity for self-control — of 
that same control which produces wealth by subduing 
the natural appetite of living for the present, and 
which fructifies in art and learning through subordi- 
nating a material and immediate to a remote, intan- 
gible, and spiritual enjoyment. The assertion, then, 
that there is a relation between civilisation and the 
proprietary capacities of women is only a form of the 
truth that every one of those conquests, the sum of 
which we call civilisation, is the result of curbing 
some one of the strongest, because the primary, im- 
pulses of human nature. If we were asked why the 
two societies with which we have been concerned — 
the Hindoos on the one hand, and the Romans and 
all the races to which they have bequeathed their in- 
stitutions on the other — have had so widely different 
a history, no reply can be very confidently given, so 
difficult is it, among the vast variety of influences 
acting on great assemblages of men, to single out any 
one or any definite number of them, and to be sure 
that these have operated more powerfully than the 
rest. Yet, if it were absolutely necessary to give an 



lect. xi. ENFRANCHISEMENT OF WOMEN. 341 

answer, it would consist in pointing to the difference 
in their social history which has been the subject of 
this lecture, and in observing that one steadily car- 
ried forward, while the other recoiled from, the series 
of changes which put an end to the seclusion and 
degradation of an entire sex. 



342 JURISPRUDENCE IN ENGLAND. lbct. xa 



LECTURE Xn. 

SOVEREIGNTY. 

The historical theories commonly received among 
English lawyers have done so much harm not only to 
the study of law but to the study of history, that an 
account of the origin and growth of our legal system, 
founded on the examination of new materials and the 
re -examination of old ones, is perhaps the most 
urgently needed of all additions to English knowledge. 
But next to a new history of law, what we most re- 
quire is a new philosophy of law. If our country 
ever gives birth to such a philosophy, we shall pro- 
bably owe it to two advantages. The first of them 
is our possession of a legal system which for many 
purposes may be considered indigenous. Our na- 
tional pride, which has sometimes retarded or limited 
our advance in juridical enquiry, has kept our law 
singularly pure from mixture with the stream of 
legal rules flowing from the great fountain of the 
Roman Corpus Juris, and thus, when we place it in 
juxtaposition with any other European legal system, 



lect. xn. THE ANALYTICAL JURISTS. , 343 

the results of the comparison are far more fruitful of 
instruction than those obtained by contrasting the 
various Continental bodies of law with one another. 
The second advantage I believe to consist in the 
growing familiarity of Englishmen with the investi- 
gations of the so-called Analytical Jurists', of whom 
the most considerable are Jeremy Bentham and John 
Austin. Of this advantage we have a monopoly. 
Bentham seems to be exclusively known in France 
and Germany as the author of an unpopular system 
of morals. Austin is apparently not known at all. 
Yet to Bentham, and even in a higher degree to 
Austin, the world is indebted for the only existing 
attempt to construct a system of jurisprudence by 
strict scientific process and to found it, not on 
a priori assumption, but on the observation, com- 
parison, and analysis of the various legal conceptions. 
There is not the smallest necessity for accepting all 
the conclusions of these great writers with implicit 
deference, but there is the strongest necessity for 
knowing what those conclusions are. They are in- 
dispensable, if for no other object, for the purpose of 
clearing the head. 

An important distinction between Bentham and 
Austin is not as often recognised as it ought to be. 
Bentham in the main is a writer on legislation. 
Austin in the main is a writer on jurisprudence. 
Bentham is chiefly concerned with law as it might be 



344 BENTHAM AND AUSTIN. lect. xh 

and ought to be. Austin is chiefly concerned with 
law as it is. Each trespasses occasionally on the 
domain of the other. Unless Bentham had written 
the treatise called the ' Fragment on Government/ 
Austin's 4 Province of Jurisprudence Determined/ 
which sets forth the basis of his system, would never 
probably have been composed. On the other hand, 
Austin, in his singular discussion of the theory of 
utility as an index to the Law of God, has entered on 
an investigation of the class followed by Bentham. 
Still the description which I have given of their 
objects is sufficiently correct as a general description, 
and those objects are widely different. Bentham 
aims at the improvement of the law to be effected by 
the application of the principles now indissolubly 
associated with his name. Almost all of his more im- 
portant suggestions have been adopted by the Eng- 
lish Legislature, but the process of engrafting on the 
law what to each successive generation seem to be 
improvements is in itself of indefinite duration, and 
may go on, and possibly will go on, as long as the 
human race lasts. Austin's undertaking is more 
modest. It would be completed, if a Code were 
produced perfectly logical in order of arrangement 
and perfectly lucid in statement of rule. Jurispru- 
dence, the science of positive law, is sometimes spoken 
of nowadays as if it would bring the substance of 
the law into a state of indefinite perfection. It would 



lect. in. Austin's province of jurisprudence. 345 

doubtless, if it were carried far, lead indirectly to 
great legal reforms by dispelling obscurities and dis- 
sipating delusions, but the investigation of the prin- 
ciples on which the direct improvement of substantive 
legal rules snould be conducted belongs nevertheless 
not to the theorist on jurisprudence but to the 
theorist on legislation. 

The portion of Austin's Lectures which sets forth 
the basis of his system, and which was published 
several years ago as the 'Province of Jurisprudence 
Determined/ has long been one of the higher class- 
books in this University ; and, taken together with 
the other lectures more recently given to the world 
(though unhappily in a fragmentary shape), it must 
always, or for a long time to come, be the mainstay 
of the studies prosecuted in this Department. Making 
the utmost acknowledgment of the value of the book, 
I find it impossible not to recognise the magnitude of 
the difficulties which it occasions to the beginner. 
Those which have their origin in peculiarities of style 
and which seem to be attributable to the perpetual 
commerce of thought in which the writer lived with 
his precursors, Bentham and Hobbes, I find to be 
practically less grave than difficulties of another sort 
which arise from the repulsion created in the mind by 
the shape in which the conceptions of law, right, and 
duty are presented to it by Austin's analysis. Of 
course, so far as this distaste is caused by unpalatable 



346 NATURE OF AUSTIN'S POSITIONS. 



LECT. xn. 



truth, any tenderness shown to it would be wasted ; 
but even thus it is a misfortune, and, if it be in any 
degree provoked by avoidable causes, such as methods 
of statement or arrangement, no pains bestowed on 
the attempt to remove it to this extent would be 
thrown away. A very frequent effect of forcing on 
students of active mind and industrious habits a 
system or subject which for some reason or other is 
repugnant to them is to make them regard it as so 
much dogma, as something resting on the personal 
authority of the writer with whose name it happens 
to be associated. Now nothing could be more unfor- 
tunate for the philosophy of law than that the sys- 
tem of the ' Province of Jurisprudence Determined ' 
should come to be regarded simply as Austin's sys- 
tem — as standing by the side of Blackstone's or 
Hegel's or any other system — as interchangeable with 
it or equivalent to it. For, when certain assumptions 
or postulates have been made, I am fully convinced 
that the great majority of Austin's positions follow 
as of course and by ordinary logical process. These 
assumptions do not appear to me to be stated 
and described by Austin with sufficient fulness 
— possibly because, though he is a comparatively 
modern writer, a part of the enquiries necessary for 
such statement had in his day been barely com- 
menced — but, whatever the cause, the result is that 
he seems to me open to the same charge as some of 



lect. bl SOVEREIGNTY. 347 

the greatest writers on Political Economy who have 
omitted to set forth at the outset with adequate dis- 
tinctness the limited objects of their science, and 
who have thus attracted to it a mass of prejudice of 
which it may never possibly get rid. The present 
Lecture is an attempt to show what a certain 
number of these assumptions or postulates are ; in 
that which follows it, I endeavour to show how these 
assumptions are affected by some conclusions which 
we have arrived at in former Lectures during our 
investigation of the early history of society. (Supra, 
Lectures I. to XL) I think it best for my purpose 
to begin with calling attention to the definition of 
Sovereignty. Beyond all doubt this is the logical 
order of the discussion undertaken by Austin, and I 
find it difficult to understand, except on one hypo- 
thesis, why, deserting the arrangement of Hobbes, he 
began the discussion of this part of his subject by the 
analysis of Law, Right and Duty, and ended it with an 
account of Sovereignty which it seems to me should 
have come first. I imagine, however, that Blackstone 
influenced him, as he did Bentham, so to speak, by 
repulsion. Blackstone, following Roman Institutional 
writers, begins with a definition of law and proceeds 
to give a theory of the connection of the various legal 
conceptions. The desire to expose the fallacies of 
this portion of the Commentaries furnished Bentham 
with his principal motive for writing the Fragment 






348 AUSTIN S DEFINITIONS. lect. xn, 

on Government, and Austin with his chief induce- 
ment to determine the Province of Jurisprudence, 
and the latter seems to me to have thought that the 
propositions he disputed would be most effectually- 
disposed of, if they were contradicted in the order 
given them by their author. However that may be, 
the branch of my subject on which I shall first have 
to enter may be described as an enquiry into the 
probable mode in which Austin's analysis would 
have been affected, if he had begun in his first Lec- 
ture with the examination of the nature of Sove- 
reignty. This examination he placed in the Sixth, 
which, so far as the ' Province of Jurisprudence ' is 
concerned, is the last of his Lectures. 

I believe I may assume that most of my hearers 
are familiar with the general character of the investi- 
gation prosecuted by Austin in the Treatise to which 
I have referred, but, as his definitions are not easily 
carried in the memory in their complete shape, I will 
give his descriptions of an Independent Political So- 
ciety and of Sovereignty, the two conceptions being 
interdependent and inseparable from one another. 

1 If (he says) a determinate human superior, not 
in the habit of obedience to a like superior, receive 
habitual obedience from the bulk of a given society, 
that determinate superior is Sovereign in that society, 
and the society, including the superior, is a society 
political and independent •' 



lect. m. INDEPEJTOENT POLITICAL COMMUNITIES. 343 

He then proceeds : ' To that determinate superior 
the other members of the society are subject ; or on 
that determinate superior the other members of the 
society are dependent. The position of its other 
members towards that determinate superior is a state 
of subjection or a state of dependence. The mutual 
relation which subsists between that superior and 
them, may be styled the relation of Sovereign and 
Subject, or the relation of Sovereignty and Subjec- 
tion.' 

I may perhaps save the necessity for part of the 
amplification and explanation of these definitions con- 
tained in the Chapter in which they occur, if I state 
Austin's doctrine of Sovereignty in another way — 
more popularly, though without, I think, any sub- 
stantial inaccuracy. It is as follows : There is, in 
every independent political community — that is, in 
every political community not in the habit of obe- 
dience to a superior above itself — some single person 
or some combination of persons which has the power 
of compelling the other members of the community 
to do exactly as it pleases. This single person or 
group — this individual or this collegiate Sovereign 
(to employ Austin's phrase) — maybe found in every 
independent political community as certainly as the 
centre of gravity in a mass of matter. If the com- 
munity be violently or voluntarily divided into a 
number of separate fragments, then, as soon as 



350 THE FORMS OF GOVERNMENT. lect. xn. 

each fragment has settled down (perhaps after an 
interval of anarchy) into a state of equilibrium, the 
Sovereign will exist and with proper care will be 
discoverable in each of the now independent por- 
tions. The Sovereignty over the North American 
Colonies of Great Britain had its seat in one place 
before they became the United States, in another 
place afterwards ; but in both cases there was a dis- 
coverable Sovereign somewhere. This Sovereign, this 
person or combination of persons, universally oc- 
curring in all independent political communities, has 
in all such communities one characteristic, common to 
all the shapes Sovereignty may take, the possession of 
irresistible force, not necessarily exerted but capable 
of being exerted. According to the terminology pre- 
ferred by Austin, the Sovereign, if a single person, is 
or should be called a Monarch; if a small group, 
the name is an Oligarchy ; if a group of considerable 
dimensions, an Aristocracy; if very large and nu- 
merous, a Democracy. Limited Monarchy, a phrase 
perhaps more fashionable in Austin's day than it is 
now, is abhorred by Austin, and the Government of 
Great Britain he classes with Aristocracies. That 
which all the forms of Sovereignty have in common 
is the power (the power but not necessarily the will) 
to put compulsion without limit on subjects or fel- 
low-subjects. It is sometimes extremely difficult to 
discover the Sovereign in a given State, and, when he 



lect. xn. THE SOVEREIGN DETERMINATE. 351 

or it is discovered, he may fall under no recognised 
designation, but, where there is an independent 
political society not in a condition of anarchy, the 
Sovereign is certainly there. The question of deter- 
mining his character is, you will understand, always 
a question of fact. It is never a question of law or 
morals. He who, when a particular person or group 
is asserted to constitute the Sovereign in a given 
community, denies the proposition on the ground 
that such Sovereignty is an usurpation or a viola- 
tion of constitutional principle, has completely missed 
Austin's point of view. 

The definitions which I read from the Sixth Lec- 
ture furnish Austin's tests for discovering the seat 
of Sovereignty in independent states. 1 will again 
refer to a few of the most important of them, though 
very briefly. 

First, the Sovereign is a determinate human supe- 
rior. He is not necessarily a single person ; in the 
modern "Western world he is very rarely so ; but he 
must have so much of the attributes of a single per- 
son as to be determinate. If he is not a single person, 
he must be a number of persons capable of acting in 
a corporate or. collegiate capacity. This part of the 
definition is absolutely necessary, since the Sovereign 
must effect Ms exertions of power, must issue his 
orders, by a definite exercise of his will. The pos- 
session of physical power } which is one characteristic 



352 THE OBEDIENCE OF SUBJECTS. lect. xn. 

of Sovereignty, has as matter of historical fact re- 
peatedly been for a time in the hands of a number of 
persons not determinate, not so connected together as 
to be capable of exercising volition, but such a state 
of things Austin would call anarchy, though it might 
not have all the usually recognised symptoms of a 
revolutionary interval. At the same time, the limi- 
tation of Sovereignty to determinate groups, when 
the Sovereign is not an individual, is extremely im- 
portant, since it qualifies the notion of Sovereignty by 
rendering it subject to the various artifices by which 
an exercise of volition is elicited from a corporate 
body. Familiar to us as is the practice of taking the 
opinion of a majority as the opinion of an entire 
group, and natural as it seems, nothing can be more 
artificial. 

Again, the bulk of the society must obey the 
superior who is to be called Sovereign. Not the 
whole of the society, for in that case Sovereignty 
would be impossible, but the bulk, the large majority, 
must obey. After the accession of the House of 
Hanover to the British throne, a certain number of 
Jacobites and a considerable portion of the Scottish 
Highlanders habitually disobej^ed or disregarded the 
commands of the British Crown and Parliament, but 
the bulk of the nation, including no doubt the bulk 
of the Jacobites themselves, gave to these commands 
a practical obedience. On Austin's principles, there- 



iect. xn. HABITUAL OBEDIENCE. 353 

fore, there is not the least ground for questioning 
the Sovereignty of George the First and Second and 
of the Parliaments elected at their summons. The 
Jacobite view, that the Hanoverian Kin^s were ex- 
clusively Sovereign in Hanover, would at once be 
thrown aside by Austin as not raising that question 
of fact which is alone disputable under his system. 

Next, the Sovereign must receive an habitual 
obedience from the bulk of the community, in 
European societies professing the Roman Catholic 
faith, the great majority of the population receives a 
variety of directions on points of personal conduct, 
either mediately or immediately, from the See of 
Rome. But, compared with the number of times it 
submits itself to the laws of the country it inhabits, 
its obedience to these extrinsic commands is only 
occasional, and not habitual. At the same time a 
dim appreciation of the principles brought into light 
by Austin may be detected in several famous eccle- 
siastical controversies, which sometimes tend to be- 
come disputes whether the obedience to the See of 
Rome which is actually paid is or is not so frequent 
as to fall under the description of habitual. 

A further characteristic of Sovereignty is immu- 
nity from the control of every other human superior. 
The limitation is obviously necessary, for otherwise 
the Governor-General of India in Council would be 
Sovereign, and indeed would exhibit a closer corres- 

A K 



354 HOBBES. lect. xn 

pondence with the more salient features of Sove- 
reignty than almost any other potentate on the face 
of the globe. 

Those who have observed with what slowness 
definite conceptions are developed in the field of his- 
tory and politics will be prepared to hear that this 
whole view of the nature of Sovereignty is older than 
Austin's work. But, so far as my own knowledge 
extends, I do not think that any material portion of 
it is older than Hobbes. On the other hand, in the 
Leviathan of Hobbes and in the Chapter De Cive in 
his Treatise first published in Latin, called the 
Elementa Philosophies, the analysis of Government 
and Society and the determination of Sovereignty 
are so nearly completed that little could be added to 
them by Bentham and Austin. The originality of 
these later writers, and more particularly of Austin, 
resides in their much fuller examination of the con- 
ceptions dependent on the notion of Sovereignty — 
positive law, positive duty, sanction and right— in 
setting forth the relations of these conceptions to 
others superficially resembling them, in combating 
objections to the theory by which the entire group of 
notions are connected together, and in applying this 
theory to certain complex states of fact which had 
arisen since Hobbes wrote. There is, however, one 
great difference between Hobbes and his latest suc- 
cessor. The process of Hobbes was scientific, but 



Uect. xn. POLITICO OPINIONS OF HOBBES, 365 

his object was less scientific than political. When, 
with a keenness of intuition and lucidity of statement 
which have never been rivalled, he has made out a 
case for the universal theoretical existence of Sove- 
reignty, it becomes clear that he has, to say the 
least, a strong preference for monarchies over aris- 
tocracies and democracies, or (to use the phraseology 
of the school which he founded) for individual over 
corporate Sovereignty. Those of his intellectual 
followers who would have repudiated his politics 
have often asserted that he has been misunderstood, 
and no doubt some superficial readers have supposed 
that he was pointing at despotism when he was really 
referring to the essentially unqualified power of the 
Sovereign whatever the form of the Sovereignty. 
But I do not think it can in candour be denied that 
his strong dislike of the Long Parliament and of the 
English Common law, as the great instrument of 
resistance to the Stuart Kings, has occasionally co- 
loured the language which he uses in examining the 
nature of Sovereignty, Law, and Anarchy; nor is it 
matter for surprise that he should have been charged 
during his life with having devised his system with 
the secret intention of making his peace with the Pro- 
tector, though the accusation itself is sufficiently 
refuted by dates. But Austin's object is strictly 
scientific. If he has fallen into errors, he has been 
led into them by his philosophy, and his language 

A A 2 



S56 HOBBES ON THE ORIGIN OF SOCIETY, lect, xn. 

scarcely ever betrays the colour of his political 
opinions. 

Another considerable difference is this. Hobbes, 
it is well known, speculated on the origin of Govern- 
ment and Sovereignty. It is the one fact which 
some persons seem to have learned about him, and 
they appear to think his philosophy sufficiently con- 
demned by it. But Austin barely enters on this 
enquiry ; and indeed he occasionally, though perhaps 
inadvertently, uses language which almost seems tc 
imply that Sovereignty and the conceptions depen- 
dent on it have an a priori existence. Now in this 
matter I myself hold that the method of Hobbes 
was correct. It is true that nothing can be more 
worthless in itself than Hobbes's conjectural account 
of the origin of society and government. Mankind, 
he asserts, were originally in a state of war. They 
then made a compact under which every man 
abandoned his powers of aggression, and the result 
was Sovereignty, and through Sovereignty law, peace, 
and order. The theory is open to every sort of 
objection. There is no evidence of any stage of the 
supposed history, and the little we know of primitive 
man contradicts it. The universal disorder of the 
race in its infancy may be true of the contests of 
tribe with tribe and of family with family ; but it is 
not true of the relations of individual man with in- 
dividual man, whom we, on the contrary, first discern 



lect. xn. ASSERTIONS OF ANALYTICAL JURISTS. 35T 

living together under a regimen which, if we are 
compelled to employ modern phraseology, we must 
call one of ultra-legality. And, in addition, the 
theory is open to precisely the same objection as the 
counter-hypothesis of Locke, that it antedates the 
modem juridical conception of Contract. But still I 
think that Hobbes did correctly in addressing him- 
self to the problem, though he did little to solve it. 
The duty of enquiring, if not how Sovereignty arose, 
at all events through what stages it has passed, is in 
my judgment indispensable. It is only thus that we 
can assure ourselves in what degree the results of 
the Austinian analysis tally with facts. 

There is, in truth, nothing more important to the 
istudent of jurisprudence than that he should carefully 
consider how far the observed facts of human nature 
and society bear out the assertions which are made 
or seem to be made about Sovereignty by the Ana- 
lytical Jurists. To begin with, these assertions must 
be disentangled from one another. The first of them 
is that, in every independent community of men, there 
resides the power of acting with irresistible force on 
the several members of that community. This may 
be accepted ab actual fact. If all the members 
of the community had equal physical strength and 
were unarmed, the power would be a mere result 
from the superiority of numbers ; but, as a matter of 
fact, various causes, of which much the most import- 



358 THE FORCE OF SOCIETY. lect. xn. 

ant have been the superior physical strength and 
the superior armament of portions of the com- 
munity have conferred on numerical minorities the 
power of applying irresistible pressure to the indi- 
viduals who make up the community as a whole. 
The next assertion is that, in every independent 
political community, that is in every independent 
community neither in a state of nature on the one 
hand nor in a state of anarchy on the other, the 
power of using or directing the irresistible force 
stored-up in the society resides in some person or 
combination of persons who belong to the society 
themselves. The truth of this assertion is strongly 
suggested by a certain class of facts, particularly by 
the political facts of the Western and Modern world ; 
but all the relevant facts, it must be recollected, have 
not been fully observed. The whole world, of which 
theorists on human nature are extremely apt to for- 
get considerably more than half, and the entire history 
of the whole world, would have to be examined before 
we could be quite sure of the facts, and, if this were 
done, it may be that a great number of the facts would 
not so strongly suggest the conclusion, or, as I my • 
self think, the assertion which we are considering 
would not so much be shown to be false as to be only 
verbally true, and therefore without the value which 
it possesses in societies of the type to which our own 
belongs. An assertion, however, which the great 



LECT. ill. SOVEREIGNTY AN ABSTRACTION. 359 

Analytical Jurists cannot be charged with making, 
but which some of their disciples go very near to 
hazarding, that the Sovereign person or group actu- 
ally wields the stored-up force of society by an uncon- 
trolled exercise of will, is certainly never in accord- 
ance with fact. A despot with a disturbed brain is 
the sole conceivable example of such Sovereignty. 
The vast mass of influences, which we may call for 
shortness moral, perpetually shapes, limits or forbids 
the actual direction of the forces of society by its 
Sovereign. This is the point which, of all others, it 
is practically most necessary that the student should 
bear in mind, because it does most to show what the 
Austinian view of Sovereignty really is — that it is 
the result of Abstraction. It is arrived at by throw- 
ing aside all the characteristics and attributes of 
Government and Society except one, and by con- 
necting all forms of political superiority together 
through their common possession of force. The ele- 
ments neglected in the process are always important, 
sometimes of extreme importance, for they consist of 
all the influences controlling human action except 
force directly applied or directly apprehended ; but 
the operation of throwing them aside for purposes of 
classification is, I need hardly say, perfectly legiti- 
mate philosophically, and is only the application of a 
method in ordinary scientific use. 

To put the same thing in another way, that which 



360 ELIMINATION OF HISTORICAL INFLUENCES, lect. xii 

we reject in the process of abstraction by which the 
conception of Sovereignty is reached is the entire 
history of each community. First of all, it is the 
history, the whole historical antecedents, of each 
society by which it has been determined where, in 
what person or group, the power of using the social 
force is to reside. The theory of Sovereignty neglects 
the mode in which the result has been arrived at, 
and thus is enabled to class together the coercive 
authority of the great King of Persia, of the Athe- 
nian Demos, of the later Eoman Emperors, of the 
Russian Czar, and of the Crown 'and Parliament of 
Great Britain. Next, it is its history, the entire mass 
of its historical antecedents, which in each commu- 
nity determines how the Sovereign shall exercise or 
forbear from exercising his irresistible coercive power. 
All that constitutes this — the whole enormous aggre- 
gate of opinions, sentiments, beliefs, superstitions, and 
prejudices, of ideas of all kinds, hereditary and ac- 
quired, some produced by institutions and some by 
the constitution of human nature — is rejected by the 
Analytical Jurists. And thus it is that, so far as the 
restrictions contained in their definition of Sove- 
reignty are concerned, the Queen and Parliament of 
our own country might direct all weakly children to 
be put to death or establish a system of lettres de 
cachet. 

The procedure of the Analytical Jurists is clospl* 



lect. xn. ABSTRACT SCIENCES. 361 

analogous to that followed in mathematics anl poli- 
tical economy. It is strictly philosophical, but the 
practical value of all sciences founded on abstractions 
depends on the relative importance of the elements 
rejected and the elements retained in the process of 
abstraction. Tried by this test, mathematical science 
is of greatly more value than political economy, and 
both of them than jurisprudence as conceived by the 
writers I am criticising. Similarly, the misconcep- 
tions to which the Austinian analysis gives rise are 
very similar to those which might be conceived as 
embarrassing the student of mixed mathematics, and 
which do actually embarrass the student of political 
economy. Just as it is possible to forget the exist- 
ence of friction in nature and the reality of other 
motives in society except the desire to grow rich, so 
the pupil of Austin may be tempted to forget that 
there is more in actual Sovereignty than force, and 
more in laws which are the commands of sovereigns 
than can be got out of them bv merelv considering 
them as regulated force. I am not prepared to deny 
that Austin occasionally, and Hobbes frequently, ex- 
press themselves as if their system were not limited 
throughout by the limitation which is at its base. 
All the great masters of Abstraction are, in fact, now 
and then betrayed into speaking or writing as if the 
materials thrown aside in the purely mental process 
were actually dross. 



362 LAW DEPENDENT ON SO "EREIGNTY. lect. m. 

When, however, it has once been seen that in 
Austin's system the determination of Sovereignty 
ought to precede the determination of Law, when it 
is once understood that the Austinian conception of 
Sovereignty has been reached through mentally uniting 
all forms of government in a group by conceiving them 
as stripped of every attribute except coercive force, 
and when it is steadily borne in mind that the deduc- 
tions from an abstract principle are never from the 
nature of the case completely exemplified in facts, 
not only, as it seems to me, do the chief difficulties 
felt by the student of Austin disappear, but some 
of the assertions made by him at which the beginner 
is most apt to stumble have rather the air of self- 
evident propositions. I dare say you are sufficiently 
acquainted with his treatise to make it enough for me 
to mention some of these propositions, without the 
amplifications which are necessary for their perfectly 
accurate statement. Jurisprudence is the science of 
Positive Law. Positive Laws are Commands, ad- 
dressed by Sovereigns to their Subjects, imposing 
a Duty, or condition of obligedness, or obligation, 
on those Subjects, and threatening a Sanction, or 
Penalty, in the event of disobedience to the Command. 
A Right is the faculty or power conferred by the 
Sovereign on certain members of the community to 
draw down the sanction on a fellow- subject violating 
a Duty. Now all these conceptions of Law, Eight, 



lect. xn. CUSTOMAKY LAW. 363 

Duty and Punishment depend upon the primary con- 
ception of Sovereignty, just as the lower links of a 
chain hanging down depend upon the highest link. But 
Sovereignty, for the purposes of Austin's system, has 
no attribute but force, and consequently the view here 
taken of ' law,' ' obligation ' and ' right ' is a view of 
them regarded exclusively as products of coercive 
force. The ' sanction ' thus becomes the primary and 
most important member of the series of notions and 
gives its colour to all the others. Probably nobody 
ever found a difficulty in allowing that laws have the 
character given to them by Austin, so far as such laws 
have proceeded from formal Legislatures. But many 
persons, and among them some men of powerful 
mind, have struggled against the position that the 
great mass of legal rules which have never been pre- 
scribed by the organ of State, conventionally known 
as the Legislature, are commands of the Sove- 
reign. The customary law of all countries which 
have not included their law in Codes, and specially 
the English Common law, have often had an origin 
claimed for them independently of the Sovereign, and 
theories have been propounded on the subject which 
Austin scouts as mysterious and unintelligible. The 
way in which Hobbes and he bring such bodies of 
rules as the Common law under their system is by 
insisting on a maxim which is of vital importance to 
it — c Whatever the Sovereign permits, he commands f 



364 PEKMISSION AND COM VIAND. jxct iu 

Until customs are enforced by Courts of Justice, 
they are merely ' positive morality,' rules enforced by 
opinion, but, as soon as Courts of Justice enforce 
them, they become commands of the Sovereign, con- 
veyed through the Judges who are his delegates or 
deputies. It is a better answer to this theory than 
Austin would perhaps have admitted that it is 
founded on a mere artifice of speech, and that it 
assumes Courts of Justice to act in a way and from 
motives of which they are quite unconscious. But, 
when it is clearly comprehended that, in this system, 
there are no associations with the Sovereign but force 
or power, the position that what Sovereigns permit 
they command becomes more easily intelligible. 
They command because, being by the assumption 
possessed of uncontrollable force, they could innovate 
without limit at any moment. The Common law 
consists of their commands because they can repeal 
or alter or re-state it at pleasure. The theory is 
perfectly defensible as a theory, but its practical value 
and the degree in which it approximates to truth differ 
greatly in different ages and countries. There have 
been independent political communities, and indeed 
there would still prove to be some of them if the world 
were thoroughly searched, in which the Sovereign, 
though possessed of irresistible power, never dreams 
of innovation, and believes the persons or groups, by 
whom laws are declared and applied, to be as much 



lect. xn. LIMITATIONS OF AUSTINIAN THEORY. 3So 

part of the necessary constitution of society as he is 
himself. There have again been independent po- 
litical societies in which the Sovereign has enjoyed 
irresistible coercive power and has carried innovation 
to the farthest point; but in which every single asso- 
ciation connected with law would have violence done 
to it if laws were regarded as his commands. The 
Tyrant of a Greek city often satisfied every one of Aus- 
tin's tests of Sovereignty ; yet it was part of the ac- 
cepted definition of a Tyrant that l he subverted the 
laws.' Let it be understood that it is quite possible to 
make the theory fit in with such cases, but the process 
is a mere straining of language. It is carried on by 
taking words and propositions altogether out of the 
sphere of the ideas habitually associated with them. 

Before proceeding to speak at some length in my 
next Lecture of these historical limitations on the 
practical value of Austin's theories, let me repeat my 
opinion that if the method of discussion which seems 
to me correct had been followed in his treatise, and if 
the examination of Sovereignty had preceded the ex- 
amination of the conceptions dependent on it, a con- 
siderable number of the statements which he has 
made respecting these latter conceptions would have 
appeared not merely innocent but self-evident. Law 
is here regarded as regulated force, simply because 
force is the one element which has been allowed to 
enter into the primary notion upon which all the 



366 AUSTIN ON MORALITY. lect. xit. 

others depend. The one doctrine of this schocl of 
jurists which is repugnant to lawyers would lose its 
air of paradox if an assumption were made which, in 
itself theoretically unobjectionable, manifestly ap- 
proximates to practical truth as the course of history 
proceeds — the assumption that what the Sovereign 
might alter, but does not alter, he commands. The 
same arrangement would have a further advantage, 
as it seems to me, through the modifications it would 
necessitate in Austin's manner of discussing Morality, 
though the subject is not one which can be here 
treated with completeness. The position at which 
many readers have stumbled — I do not affect to do 
more than state it in popular language — is that the 
sanction of moral rules, as such, is the disapprobation 
which one's fellow- men manifest at their violation. 
It is sometimes construed to mean that the only 
motive for obeying moral rules is the fear of such 
disapprobation. Such a construction of Austin's lan- 
guage is an entire misconception of his meaning ; 
but, if the order of discussion which I advocate had 
been followed, I do not think it could ever possibly 
occur to any mind. Let us suppose Austin to have 
completed his analysis of Sovereignty and of the con- 
ceptions immediately dependent on it, law,, legal 
right, and legal obligation. He would then have to 
examine that great mass of rules, which men in fact 
obey, which have some of the characteristics of laws, 



lect. xn. THEORY OF MORALITY. / 867 

but which are not (as such) imposed by Sovereigns on 
subjects, and which are not (as such) enforced by the 
sanction supplied by Sovereign power. It would be, 
of course, incumbent on the philosophical jurist to 
examine these rules, because Sovereigns being by his 
hypothesis human superiors are, as human beings, 
subject to them. Austin has, in fact, examined them 
from this point of view in some of his most in- 
teresting passages. While insisting that Sovereignty 
is from tne nature of the case incapable of legal 
limitation, ne fully admits that Sovereigns are re- 
strained from issuing some commands and deter- 
mined to issue others by rules which, though they 
are not laws, are of extreme cogency. The Crown 
and Parliament of Great Britain are in his view Sove- 
reign — a sovereign aristocracy, as he would call it — 
but, though this aristocracy could for purposes of 
argument do anything it pleased, it would be out- 
raging all experience to assert that it does this. 
That great body of rules which is embodied in con- 
stitutional maxims keeps it from doing some things ; 
that great body of rules which in ordinary usage are 
called moral keeps it from doing others. What com- 
mon characteristics has this aggregate of rules which 
operate on men and on Sovereigns, like other men? 
Austin, as you know, names it ' positive morality,' and 
says that its sanction is opinion, or the disapproval 
of the bulk of the community following on its viola- 



368 AUSTIN S ETHICAL CREED. lect. xn. 

tion. Properly understood, this last is an obviously 
true proposition, for what is meant is that public 
disapprobation is the one sanction which all these 
rules have in common. The rule which keeps the 
Crown and Parliament from declaring murder legal, 
and the rule which keeps them from allowing the 
Queen to govern without Ministers, are connected 
together through the penalty attendant on a breach 
of them, which is the strong disapprobation of a 
majority of Englishmen ; and it is their having a 
sanction of some kind which principally connects 
both rules with laws proper. But, though fear of 
opinion be a motive for obedience to both rules, it 
does not at all follow that the sole motive for obedi- 
ence to both rules is fear of opinion. This fear 
would be allowed by most people to be the chief, if 
not the exclusive, motive for obedience to consti- 
tutional rules ; but such an admission involves no 
necessary assertion whatever as to the complete 
sanction of moral rules. The truth is that Austin's 
system is consistent with any ethical theory ; and, it 
Austin seems to assert the contrary, I think the 
cause is to be sought in his firm conviction of the 
truth of his own ethical creed, which, I need not say, 
was Utilitarianism in its earlier shape. I do not, in- 
deed, for a moment intend to deny that the careful 
study of Austin would probably modify the student's 
view of morals. The discussion of ethics, like many 



lect. xn. AUSTIN- ON LAW OF GOD. / 360 

others, is conducted amid much obscurity of thought, 
and there is no specific more sovereign for dispelling 
such obscurity than the association of the cardinal 
terms which enter into our enquiry with absolutely 
consistent meanings, and the employment of the 
terms with these meanings as a test for the detection 
of equivocal phraseology. It is the one inestimable 
service of the Analytical School to jurisprudence and 
morals that it furnishes them with a rigidly con- 
sistent terminology. But there is not the faintest 
reason for thinking that the intelligent and apprecia- 
tive student of the system must necessarily be an 
utilitarian. 

I shall state hereafter what I believe to be the 
true point of contact between Austin's system and 
the utilitarian philosophy. Meantime, devotion to 
this philosophy, coupled with what I hold to be a 
faulty arrangement, has produced the most serious 
blemish in the Province of Jurisprudence Deter- 
mined. The 2nd, 3rd, and 4th Lectures are occu- 
pied with an attempt to identify the law of God and 
the law of Nature (so far as these last words can be 
allowed to have any meaning) with the rules re- 
quired by the theory of utility. The lectures contain 
many just, interesting, and valuable observations; 
but the identification, which is their object, is quite 
gratuitous and valueless for any purpose. Written, 
I doubt not, in the honest belief that they would 

B B 



370 AUSTIN ON LAW OF GOD. lect. xn, 

help to obviate or remove prejudices, they have 
attracted to Austin's system a whole cloud of preju- 
dices both from the theological and from the philo- 
sophical side. If, however, following the order I 
have suggested, Austin, after concluding the exami- 
nation of the nature of Sovereignty and of positive 
law, had entered on an enquiry into the nature of the 
laws of God, it must have taken the form of an in- 
vestigation of the question how far the characteristics 
of the human superiors called Sovereigns can be sup- 
posed to attach to an all-powerful and non-human 
ruler, and how many of the conceptions dependent 
on human Sovereignty must be considered as con- 
tained in his commands. I much doubt whether 
such an enquiry would have seemed called for in a 
treatise like Austin's. Taken at its best, it is a dis- 
cussion belonging not to the philosophy of law but to 
the philosophy of legislation. The jurist, properly 
so called, has nothing to do with any ideal standard 
of law or morals. 



user. xin. FORCE AND ORDER. , 871 



LECTURE XIII. 

SOVEREIGNTY AND EMPIRE. 

The word 'law' has come down to us in close asso- 
ciation with two notions, the notion of order and the 
notion of force. The association is of considerable 
antiquity and is disclosed by a considerable variety 
of languages, and the problem has repeatedly sug- 
gested itself, which of the two notions thus linked 
together is entitled to precedence over the other, 
which of them is first in point of mental conception ? 
The answer, before the Analytical Jurists wrote, 
would on the whole have been that ' law ' before all 
things implied order. ' Law, in its most general and 
comprehensive sense, signifies a rule of action, and is 
applied indiscriminately to all kinds of action, whether 
animate or inanimate, rational or irrational. Thus 
we say, the laws of motion, of gravitation, of optics 
or mechanics, as well as the laws of nature and of 
nations.' With these words Blackstone begins that 
Chapter on 'the Nature of Laws in General,' which 
may almost be said to have made Bentham and 

B B 2 



372 PRIORITY OF ORDER OR FORCE. lect. xin. 

Austin into Jurists by virtue of sheer repulsion. 
The Analytical Jurists, on the other hand, lay down 
unhesitatingly that the notion of force has priority 
over the notion of order. They say that a true law, 
the command of an irresistible Sovereign, enjoins a 
class of acts or a class of omissions either on a subject 
or on a number of subjects, placed by the command 
alike and indifferently under a legal obligation. The 
characteristic which thus as a matter of fact attaches 
to most true laws of binding a number of persons, 
taken indifferently, to a number of acts or omissions, 
determined generally, has caused the term ' law ' to 
be extended by metaphor to all uniformities or inva- 
riable successions in the physical world, in the opera- 
tions of the mind, or in the actions of mankind. Law 
when used in such expressions as the Law of Gravity, 
the Law of Mental Association, or the Law of Eent, 
is treated by the Analytical Jurists as a word wrested 
from its true meaning by an inaccurate figurative 
extension, and the sort of. disrespect with which 
they speak of it is extremely remarkable. But I 
suppose that, if dignity and importance can properly 
be attributed to a word, there are in our day few 
words more dignified and more important than Law, 
in the sense of the invariable succession of pheno- 
mena, physical, mental, or even politico-economical. 
With this meaning, c law ' enters into a great deal of 
modern thought, and has almost become the condi- 



lect. xin. ORIGINAL MEANING OF c LAW.'/ 373 

tion of its being carried on. It is difficult at first 
to believe that such an expression as ' the Reign 
of Law,' in the sense in which the words have been 
popularised by the Duke of Argyll's book, would 
have been strongly disliked by Austin ; but his 
language leaves little doubt on the point, and more 
than once reminds us that, though his principal 
writings are not much more than forty years old, he 
wrote before men's ideas were leavened to the present 
depth by the sciences of experiment and observation. 
The statement that, in all languages, Law primarily 
means the command of a Sovereign, and has been 
applied derivatively to the orderly sequences of Nature 
is extremely difficult of verification; and it may be 
doubted whether its value, if it be true, would repay 
the labour of establishing its truth. The difficulty 
would be the greater because the known history of 
philosophical and juridical speculation shows us the 
two notions, which as a matter of fact are associated 
with Law, acting and reacting on one another. The 
order of Nature has unquestionably been regarded as 
determined by a Sovereign command. Many persons 
to whom the pedigree of much of modern thought is 
traceable, conceived the particles of matter which 
make up the universe as obeying the commands of a 
personal God just as literally as subjects obey the 
commands of a sovereign through fear of a penal 
sanction. On the other hand, the contemplation of 



374 LAW IN A JUEIDICAL SENSE. lect. xm 

order in the external world has strongly influenced 
the view taken of laws proper by much of the civi- 
lised part of mankind. The Roman theory of a Law 
Natural has affected the whole history of law, and 
this famous theory is in fact compounded of two 
elements, one furnished by an early perception, Greek 
in origin, of a certain order and regularity in physical 
nature, and the other attributable to an early percep- 
tion, Roman in origin, of a certain order and unifor- 
mity among the observances of the human race. I 
need not here repeat the proof of this which I at- 
tempted to give in a volume published some years 
ago. Nobody is at liberty to censure men or com- 
munities of men for using words in any sense they 
please, or with as many meanings as they please; 
but the duty of the scientific enquirer is to dis- 
tinguish the meanings of an important word from 
one another, to select the meaning appropriate to 
his own purposes, and consistently to employ the 
word during his investigations in this sense, and no 
other. The laws with which the student of Jurispru- 
dence is concerned in our own day are undoubtedly 
either the actual commands of Sovereigns, understood 
as the portion of the community endowed with irre- 
sistible coercive force, or else they are practices of 
mankind brought under the formula c a law is a com- 
mand,' by help of the formula, ' whatever the Sove- 
reign permits, is his command.' From the point of 



lect. xiii. EAKLT CONCEPTIONS OF LAW., 375 

view of the Jurist, law is only associated with order 
through the necessary condition of every true law 
that it must prescribe a class of acts or omissions, or 
a number of acts and omissions determined generally ; 
the law which prescribes a single act not being a true 
law, but being distinguished as an ' occasional ' or 
'particular' command. Law, thus defined and limited, 
is the subject-matter of Jurisprudence as conceived 
by the Analytical Jurists. At present we are only 
concerned with the foundations of their system ; and 
the questions which I wish to raise in the present 
Lecture are these : has the force which compels obedi- 
ence to a law alwavs been of such a nature that it 
can reasonably be identified with the coercive force of 
the Sovereign, and have laws always been character- 
ised by that generality which, it is said, alone con- 
nects them with physical laws or general formulas 
describing the facts of nature? These enquiries may 
seem to you to lead us far afield, but I trust you 
will perceive in the end that they have interest and 
importance, and that they throw light on the limits 
which must be assigned in certain cases, not to the 
theoretical soundness, but to the practical value, of 
the speculations we have been discussing. 

Let me recur to Sovereignty, as conceived by the 
Analytical Jurists. The readers of Austin's treatise 
will remember his examination of a number of 
existing governments or (as he would say), forms of 



376 GROWING COMPLEXITY OF GOVERNMENTS, lect. xni. 

political superiority and inferiority, for the purpose of 
determining the exact seat of sovereignty in each of 
them. This is among the most interesting parts of 
his writings, and his sagacity and originality are no- 
where more signally demonstrated. The problem had 
become much more complex than it was when Hobbes 
wrote, and even than it was at the date of Bentham's 
earlier publications. Hobbes, a partisan in England, 
was a keen scientific observer of the political pheno- 
mena of the Continent, and there the political condi- 
tions open to his observation were (putting England 
aside) practically limited to despotism and anarchy. 
But, by the time Austin wrote, England, probably 
considered by Hobbes as the ground on which the 
battle of his principles was to be fought out, had 
long since become a 'limited monarchy/ an expression 
disliked by Hobbes' successors almost as much as the 
thing was by Hobbes himself, and moreover the in- 
fluences of the first French Revolution were begin- 
ning to have their play. France had lately become 
a limited monarchy, and almost all the other Conti- 
nental States had given signs of becoming so. The 
complex political mechanism of the United States 
had arisen on the other side of the Atlantic, and the 
even more complicated systems of the German and 
Swiss Confederations in Continental Europe. The 
analysis of political societies, for the purpose of deter- 
mining the seat of sovereignty, had obviously become 



lbci. xm STATE OF ANARCHY. 377 

much more difficult, and nothing can exceed the pe- 
netration evinced by Austin in applying this analysis 
to extant examples. 

Nevertheless Austin fullv recognises the existence 
of communities, or aggregates of men, in which no 
dissection could disclose a person or group answering 
to his definition of a Sovereign. In the first place, 
like Hobbes, he fully allows that there is a state of 
anarchy. Wherever such a state is found, the ques- 
tion of Sovereignty is being actively fought out, and 
the instance given by Austin is that which was never 
absent from Hobbes's mind, the struggle between 
Charles the First and his Parliament. An acute 
critic of Hobbes and Austin, whom I am permitted to 
identify with Mr. Fitzjames Stephen, insists that 
there is a condition of dormant anarchy, and the 
reservation is doubtless made to meet such cases as 
that of the United States before the War of Seces- 
sion. Here the seat of sovereignty was for years 
the subject of violent dispute in words or on paper, 
and many eminent Americans acquired fame by 
measures which compromised for a time a notorious 
difference of principle, and adjourned a struggle 
which was nevertheless inevitable. It is in fact 
quite possible that there may be deliberate ab- 
stinence from fighting out a question known to be 
undecided, and I see no objection to calling the tem- 
porary equilibrium thus produced a state of dormant 



378 THE STATE OF NATURE. lect. xm, 

anarchy. Austin further admits the theoretical 
possibility of a state of nature. He does not attach 
to it the importance which belongs tc it in the specu- 
lations of Hobbes and others, but he allows its exist- 
ence wherever a number of men, or of groups not 
numerous enough to be political, have not as yet been 
brought under any common or habitually acting 
authority. And, in speaking in this last sentence of 
groups not numerous enough to be political, I have 
introduced the most remarkable exception allowed by 
Austin to the rule that Sovereignty is universal 
among mankind. The passage occurs at p. 237 of 
the first volume of the third edition: — 

4 Let us suppose that a single family of savages 
lives in absolute estrangement from every other com- 
munity. And let us suppose that the father, the 
chief of this iusulated family, receives habitual 
obedience from the mother and children. Now, 
since it is not a limb of another and larger commu- 
nity, the society formed by the parents and children, 
is clearly an independent society, and, since the rest 
of its members habitually obey its chief, this indepen- 
dent society would form a society political, in case 
the number of its members were not extremely minute. 
But, since the number of its members is extremely 
minute, it would, I believe, be esteemed a society in 
a state of nature ; that is, a society consisting of per- 
sons not in a state of subjection. Without an appli* 



lect. xm. NO SOVEREIGN IN VERT SMALL GROUP. 379 

cation of the terms, which would somewhat smack of 
the ridiculous, we could hardly style the society a 
society political and independent, the imperative 
father and chief a monarch or sovereign, or the 
obedient mother and children subjects.'' 

And then Austin quotes from Montesquieu the 
doctrine that c Political power necessarily implies the 
union of several families.' 

The effect of this passage then is that a society 
may be too small to admit of the application of the 
theory. The employment, Austin says, of his ter- 
minology would be ridiculous in such a case. I be- 
lieve I shall be able to point out to you the significance 
of this appeal to our sense of absurdity, generally a 
a most dangerous criterion ; but at present I merely 
ask you to note the seriousness of the admission, 
since the form of authority about which it is made, the 
authority of the Patriarch or Paterfamilias over his 
family, is, at least according to one modern theory, 
the element or germ out of which all permanent power 
of man over man has been gradually developed. 

There are, however, another set of cases, known 
to us from sources of knowledge of which it is per- 
haps fair to say that (though Austin is in one sense a 
modern writer) they were hardly open when he wrote 
— cases in which the application of his principles is at 
least difficult and doubtful. It is from no special 
love of Indian examples that I take one from India, 



380 THE PUNJAUB. lect. xnx 

but because it happens to be the most modern pre- 
cedent in point. My instance is the Indian Province 
called the Punjaub, the Country of the Five Rivers, 
in the state in which it was for about a quarter of a 
century before its annexation to the British Indian 
Empire. After passing through every conceivable 
phase of anarchy and dormant anarchy, it fell under 
the tolerably consolidated dominion of a half-military, 
half- religious oligarchy, known as the Sikhs. The 
Sikhs themselves were afterwards reduced to subjec- 
tion by a single chieftain belonging to their order, 
Runjeet Singh. At first sight, there could be no more 
perfect embodiment than Runjeet Singh of Sove- 
reignty, as conceived by Austin. He was absolutely 
despotic. Except occasionally on his wild frontier, he 
kept the most perfect order. He could have com- 
manded anything ; the smallest disobedience to his 
commands would have been followed by death or muti- 
lation, and this was perfectly well known to the enor- 
mous majority of his subjects. Yet I doubt whether 
once in all his life he issued a command which Austin 
would call a law. He took, as his revenue, a prodi- 
gious share of the produce of the soil. He harried 
villages which recalcitrated at his exactions, and he 
executed great numbers of men. He levied great 
armies ; he had all material of power, and exercised 
it in various ways. But he never made a law. The 
rules which regulated the life of his subjects were 



lect. xm, RUtfJEET SINGH. 381 

derived from their immemorial usages, and these 
rules were administered by domestic tribunals, in 
families or village-communities — that is, in groups no 
larger or little larger than those to which the appli- 
cation of Austin's principles cannot be effected, on 
his own admission, without absurdity. 

I do not for a moment assert that the existence 
of buch a state of political society falsifies Austin's 
theory, as a theory. The great maxim by which ob- 
jections to it are disposed of is, as I have so often 
said before, 'What the Sovereign permits, he com- 
mands.' The Sikh despot permitted heads of house- 
holds and village- elders to prescribe rules, therefore 
these rules were his commands and true laws. Now 
we can see that an answer of this kind might have 
some force if it were made to an English lawyer who 
denied that the Sovereign in England had ever com- 
manded the Common law. The Crown and Parliament 
command it, because the Crown and Parliament permit 
it; and the proof that they permit it is that they could 
change it. As a matter of fact, since the objection 
was first advanced, the Common law has been 
largely encroached upon by Act of Parliament, and, 
in our own day, it is possible that it may come to owe 
the whole of its binding force to statute. But my 
Oriental example shows that the difficulty felt by the 
old lawyers about the Common law may have once 
deserved more respect than it obtained from Hobbes 



382 RUNJEET SINGH. lict. xm, 

and his successors. Runjeet Singh never did or 
could have dreamed of changing the civil rules under 
which his subjects lived. Probably he was as strong 
a believer in the independent obligatory force of such 
rules as the elders themselves who applied them. 
An Eastern or Indian theorist in law, to whom the 
assertion was made that Runjeet Singh commanded 
these rules, would feel it stinging him exactly in that 
sense of absurdity to which Austin admits the appeal 
to be legitimate. The theory remains true in such a 
case, but the truth is onry verbal. 

You must not suppose that I have been indulging 
in a merely curious speculation about a few extreme 
cases to which the theory of Sovereignty, and of Law 
founded on it, will not apply without straining of 
language. In the first place, the Punjaub under 
Runjeet Singh may be taken as a type of all Oriental 
communities in their native state, during their rare 
intervals of peace and order. They have ever been 
despotisms, and the commands of the despots at their 
head, harsh and cruel as they might be, have always 
been implicitly obeyed. But then these commands, 
save in so far as they served to organise administra- 
tive machinery for the collection of revenue, have not 
been true laws ; they have been of the class called by 
Austin occasional or particular commands. The truth 
is that the one solvent of local and domestic usage in 
those parts of the world of which we have any real 



MCT. xm. ANCIENT STATE OF THE WORLD. 883 

knowledge has been not the command of the Sove- 
reign but the supposed command of the Deity. In 
India, the influence of the Brahminical treatises on 
mixed law and religion in sapping the old customary 
law of the country has always been great, and in 
some particulars, as I tried to explain on a former 
occasion, it has become greater under English rule. 

It is important to observe that, for the purposes 
of the present enquiry, the state of political society 
which I have described as Indian or Oriental is a far 
more trustworthy clue to the former condition of the 
greatest part of the world than is the modern social 
organisation of Western Europe, as we see it before 
our eyes. It is a perhaps not unreasonable impres- 
sion that Sovereignty was simpler and more easily 
discovered in the ancient than in the modern world. 
The critic of Hobbes and Austin, whom 1 before 
quoted, writes, ' in every state of which we read, 
whether Greek, Phoenician, Italian, or Asiatic, there 
was a Sovereign of some sort whose authority was ab- 
solute while it lasted ;' and he adds that, ' if Hobbes 
had tried to write an imaginary history of mankind 
he could not have constructed one better fitted for 
his purpose than the history of the foundation and 
establishment of the Roman Empire.' I put aside 
for awhile the consideration of the Roman Empire, 
and my reasons for doing so will "become apparent 
afterwards ; but, if we give our attention to empires 



384 ANCIENT EMPIRES. lect. xm 

at all resembling that of the Romans in territorial 
extent, we shall find that, properly understood, they 
are very far from corresponding to the Great Levia- 
than imagined by Hobbes. We know something of 
the Assyrian and Babylonian empires from Jewish 
records, and something of the Median and Persian 
Empires from Greek records. We learn from these 
that they were in the main tax-taking empires. We 
know that they raised enormous revenues from their 
subjects. We know that, for occasional wars of con- 
quest, they levied vast armies from populations spread 
over immense areas. We know that they exacted 
the most implicit obedience to their occasional com- 
mands, or punished disobedience with the utmost 
cruelty. We know that the monarchs at their head 
were constantly dethroning petty kings and even 
transplanting whole communities. But amid all this, 
it is clear that in the main they interfered but little 
with the every day religious or civil life of the groups 
to which their subjects belonged. They did not legis- 
late. The l royal statute ' and ' firm decree ' which 
has been preserved to us as a sample of ' law of the 
Medes and Persians which altereth not ' is not a law 
at all in the modern juridical acceptation of the term. 
It is what Austin would call a ' particular command,' 
a sudden, spasmodic, and temporary interference with 
ancient multifarious usage left in general undisturbed. 
What is even more instructive is that the famous 



tECT. xin. LIMITS OF ANALYTICAL SYSTEM. 385 

Athenian Empire belonged to the same class of sove- 
reignties as the Empire of the Great King. The 
Athenian Assembly made true laws for residents on 
Attic territory, but the dominion of Athens over hei 
subject cities and islands was clearly a tax-taking 
as distinguished from a legislating Empire. 

The difficulty of employing Austin's terminology 
of these great governments is obvious enough. How 
can it conduce to clear thinking to speak of the 
Jewish law as commanded at one period by the 
Great King at Susa ? The cardinal rule of the 
Analytical Jurists, ' what the Sovereign permits, he 
commands/ remains verbally true, but against its 
application in such a case there lies an appeal to a 
higher tribunal of which Austin allows the jurisdic- 
tion, our sense of the ridiculous. 

I have now reached the point at which I can 
conveniently state my own opinion of the practical 
limitations which must be given to the system of the 
Analytical Jurists, in order that it may possess, I will 
not say theoretical truth, but practical value. The 
Western world, to which they confined their atten- 
tion, must be conceived as having undergone two sets 
of changes. The States of modern Europe must be 
conceived as having been formed in a manner dif- 
ferent from the great empires of antiquity (save 
one), and from the modern empires and kingdoms of 
the East, and a new order of ideas on the subject of 

c c 



386 OEIGINAL COMMUNITIES. lect. xrn, 

legislation must be conceived as having been intro- 
duced into the world through the empire of the 
Romans. Unless these changes had taken place, I do 
not believe that the system would ever have been 
engendered in the brain of its authors. Wherever 
these changes have not taken place, I do not believe 
the application of the system to be of value. 

The most nearly universal fact which can be 
asserted respecting the origin of the political commu- 
nities called States is that they were formed by the 
coalescence of groups, the original group having been 
in no case smaller than the patriarchal family. But 
in the communities which came into existence before 
the Roman Empire, and in those which have been 
slightly affected by it or not at all, this coalesces* 
was soon arrested. There are some traces of the 
process everywhere. The hamlets of Attica coalesce 
to form the Athenian State ; and the primitive 
Roman State is formed by the coalescence of the 
minute communities on the original hills. In very 
many Indian village-communities there are signs 
of smaller elements combining to make them up. 
But this earlier coalescence soon stops. In a later 
stage, political communities, wearing a superficial 
resemblance to the Roman Empire, and often of 
very great territorial extent, are constructed by one 
community conquering another or one chieften, at 
the head of a single community or tribe, subjugat- 



ehct. rm. FOBMATION OF MODERN STATES. 887 

ing great masses of population. But, independently 
of the Roman Empire and its influence, the separate 
local life of the small societies included in these 
great States was not extinguished or even much en- 
feebled. They continued as the Indian village- com- 
munity has continued, and indeed, even in their most 
glorious forms, they belonged essentially to that type 
of society. But the process of change by which the 
States of the modern world were formed has been 
materially different from this. The smaller groups 
have been much more completely broken up and 
absorbed in the larger, the larger have again been 
swallowed up in still wider, and these in yet wider 
areas. Local life and village custom have not, it is 
true, decayed everywhere in the same degree. There 
is much more of them in Russia than in Germany ; 
more of them in Germany than in England ; more of 
them in England than in France. But on the whole, 
whenever the modern State is formed, it is an as- 
semblage of fragments considerably smaller than 
those which made, up empires of the earlier type, 
and considerably liker to one another. 

It would be rash to lay down confidently which 
is cause and which is consequence, but unquestion- 
ably this completer trituration in modern societies of 
the groups which once lived with an independent 
life has proceeded concurrently with much greater 
activity in legislation. Wherever the primitive con- 

c c 2 



388 THE VILLAGE COUNCIL lbct. xm. 

dition of an Aryan race reveals itself either through 
historical records or through the survival of its an- 
cient institutions, the organ which in the elementary 
group corresponds to what we call the legislature, is 
everywhere discernible. It is the Village Council, 
sometimes owning a responsibility to the entire 
body of villagers, sometimes disclaiming it, some- 
times overshadowed by the authority of an hereditary 
chief, but never altogether obscured. From this 
embryo have sprung all the most famous legislatures 
of the world, the Athenian Ekklesia, the Roman 
Comitia, Senate and Prince, and our own Parliament, 
the type and parent of all the ' collegiate sovereign- 
ties ' (as Austin would call them) of the modern 
world, or in other words of all governments in which 
sovereign power is exercised by the people or shared 
between the people and the King. Yet, if we ex- 
amine the undeveloped form of this organ of State, 
its legislative faculty is its least distinct and least 
energetic faculty. In point of fact, as I have ob- 
served elsewhere, the various shades of the power 
lodged with the Village Council, under the empire of 
the ideas proper to it, are not distinguished from one 
another, nor does the mind see a clear difference 
between making a law, declaring a law, and punish- 
ing an offender against a law. If the powers of this 
body must be described by modern names, that 
which lies most in the background is legislative 



LECT. XTTT, 



THE PRIMITIVE GROUPS AND LEGISLATION. 3 89 



power, that which is most distinctly conceived is 
judicial power. The laws obeyed are regarded as 
having always existed, and usages really new are 
confounded with the really old. 

The village -communities of the Aryan race do 
not therefore exercise true legislative power so long 
as they remain under primitive influences. Nor 
again is legislative power exercised in any intelli- 
gible sense of the words by the Sovereigns of those 
great States, now confined to the East, which pre- 
serve the primitive local groups most nearly intact. 
Legislation, as we conceive it, and the break up of 
local life appear to have universally gone on to- 
gether. Compare the Hindoo village-community in 
India with the Teutonic village-community in Eng- 
land. The first of them, among all the institutions 
of the country which are not modern and of British 
construction, is far the most definite, far the most 
strongly marked, far the most highly organised. Of 
the latter, the ancient English community, the ves- 
tiges may certainly be tracked, but the comparative 
method has to be called in, and the written law and 
written history of many centuries searched, before 
their significance can be understood and the broken 
outline restored to completeness. It is impossible 
not to connect the differing vitality of the same in- 
stitution with certain other phenomena of the two 
countries'. In India, Mogul and Mahratta following 



390 THE LAW OF THE KING. lect. un 

a long series of earlier conquerors, have swept over 
the village-communities, but after including them in 
a nominal empire they have imposed no permanent 
obligation beyond the payment of tax or tribute. If 
on some rare occasions they have attempted the en- 
forced religious conversion of subjugated populations, 
the temples and the rites have been at most changed 
in the villages, while the civil institutions have been 
left untouched. Here in England the struggle be- 
tween the central and the local power has followed 
a very different course. We can see plainly that 
the King's law and the King's courts have been 
perpetually contending against the local law and the 
local courts, and the victory of the King's law has 
drawn after it the long series of Acts of Parliament 
founded on its principles. The whole process can 
only be called legislation ever increasing in energy, 
until the ancient multifarious law of the country 
has been all but completely abolished, and the old 
usages of the independent communities have degene- 
rated into the customs of manors or into mere habits 
having no sanction from law. 

There is much reason to believe that the Roman 
Empire was the source of the influences which have 
led, immediately or ultimately, to the formation 
of highly-centralised, actively -legislating, States. It 
was the first great dominion which did not merely 
tax, but legislated also. The process was spread 



lkct. xiir. ROMAN LEGISLATION, / 391 

over many centuries. If I had to fix the epochs of 
its commencement and completion, I should place 
them roughly at the issue of the first E dictum 
Provinciale, and at the extension of the Roman 
citizenship to all subjects of the empire, bat no doubt 
the foundations of the change were laid considerably 
before the first period, and it was continued in some 
ways long after the last. But, in the result, a vast 
and miscellaneous mass of customary law was broken 
up and replaced by new institutions. Seen in this 
light, the Roman Empire is accurately described 
in the Prophecy of Daniel. It devoured, brake in 
pieces, and stamped the residue with its feet. 

The irruption of the barbarian races into the 
Empire diffused through the communities included in 
it a multitude of the primitive tribal and village 
ideas which they had lost. Nevertheless no society 
directly or indirectly influenced by the Empire has 
been altogether like the societies formed on that more 
ancient system which the immobility of the East 
has continued till we can actually observe it. In all 
commonwealths of the first kind, Sovereignty is more 
or less distinctly associated with legislative power, and 
the direction in which this power was to be exercised 
was in a considerable number of countries clearly 
chalked out by the jurisprudence which the Empire 
left behind it. The Roman law, from which the. 
most ancient legal notions had been almost wholly 



392 THE FORCE OF LAW. i&ct. xiii. 

expelled, was palpably the great solvent of local usage 
everywhere. There are thus two types of organised 
political society. In the more ancient of these, the 
great bulk of men derive their rules of life from 
the customs of their village or city, but they occa- 
sionally, though most implicitly, obey the commands 
of an absolute ruler who takes taxes from them but 
never legislates. In the other, and the one with 
which we are most familiar, the Sovereign is ever 
more actively legislating on principles of his own, 
while local custom and idea are ever hastening to 
decay. It seems to me that in the passage from one 
of these political systems to another, laws have dis- 
tinctly altered their character. The Force, for ex- 
ample, which is at the back of law, can only be 
called the same by a mere straining of language. 
Customary law — a subject on which all of Austin's 
remarks seem to me comparatively unfruitful — is not 
obeyed, as enacted law is obeyed. When it obtains 
over small areas and in small natural groups, the 
penal sanctions on which it depends are partly opin- 
ion, partly superstition, but to a far greater extent 
an instinct almost as blind and unconscious as that 
which produces some of the movements of our bodies. 
The actual constraint which is required to secure 
conformity with usage is inconceivably small. When? 
however, the rules which have to be obeyed once 
emanate from an authority external to the small 



facer, xnr. LAW AND ORDER. 3B3 

natural group and forming no part of it, they wear a 
character wholly unlike that of a customary rule. They 
lose the assistance of superstition, probably that of 
opinion, certainly that of spontaneous impulse. The 
force at the back of law comes therefore to be purely 
coercive force /to a degree quite unknown in societies 
of the more primitive type. Moreover, in many 
communities, this force has to act at a very great 
distance from the bulk of the persons exposed to it, 
and thus the Sovereign who wields it has to deal with 
great classes of acts and with great classes of per- 
sons, rather than with isolated acts and with indivi- 
duals. Among the consequences of this necessity are 
many of the characteristics sometimes supposed to be 
inseparable from laws, their indifferency, their inex- 
orableness, and their generality. 

And as the conception of Force associated with 
laws has altered, so also, I think, has the conception 
of Order. In the elementary social groups formed 
by men of the Aryan race, nothing can be more mo- 
notonous than the routine of village custom. Never- 
theless, in the interior of the households which 
together make up the village-community, the des- 
potism of usage is replaced by the despotism of 
paternal authority. Outside each threshold is im- 
memorial custom blindly obeyed; inside is the Patria 
Potestas exercised by a half- civilised man over wife, 
child, and slave. So far then as laws are commands, 



394 TRANSMUTATION OF FORCE AND ORDER. lect. xiii. 

they would be associated in this stage of society less 
with invariable order than with inscrutable caprice ; 
and it is easier to suppose the men of those times 
looking to the succession of natural phenomena, day 
and night, summer and winter, for types of regularity, 
than to the words and actions of those above them 
who possessed coercive power over them. 

The Force then which is at the back of laws 
was not always the same. The Order which goes 
with them was not always the same. They have 
only gradually attracted to themselves the attributes 
which seem essential to them not only in the popular 
view but to the penetrating eye of the Analytical 
Jurist. Their generality and their dependence on the 
coercive force of a Sovereign are the result of the 
great territorial area of modern States, of the com- 
minution of the sub-groups which compose them, and 
above all of the example and influence of the Roman 
Commonwealth under Assembly, Senate, and Prince, 
which from very early times was distinguished 
from all other dominations and powers in that 
it brake up more thoroughly that which it de- 
voured. 

It has sometimes been said of great systems of 
thought that nothing but an accident prevented their 
coming into existence centuries before their actual 
birth. No such assertion can be made of the system 
of the Analytical Jurists, which could not have been 



lect. xffl, HOBBES AND BENTHAM. 392 

conceived in the brain of its authors till the time was 
fully ripe for it. Hobbes's great doctrine is plainly 
the result of a generalisation which he had oppor- 
tunities unrivalled in that day for effecting, since 
during the virility of his intellect he was as much on 
the Continent as in England, first as a travelling tutor 
and afterwards as an exile flying from civil disturb- 
ances. Independently of English affairs, which he 
certainly viewed as a strong partisan, the phenomena 
which he had to observe were governments rapidly 
centralising themselves, local privileges and juris- 
dictions in extreme decay, the old historical bodies, 
such as the French Parliaments, tending for the time 
to become furnaces of anarchy, the only hope of 
order discoverable in kingly power. These were 
among the palpable fruits of the wars which ended 
in the Peace of Westphalia. The old multiform 
local activity of feudal or quasi-feudal society was 
everywhere enfeebled or destroyed ; if it had con- 
tinued, the system of this great thinker would almost 
certainly have never seen the light ; we have heard 
of a village Hampden, but a village Hobbes is incon- 
ceivable. By the time Bentham wrote, and while he 
was writing, the conditions which suggest the Analy- 
tical System of Jurisprudence presented themselves 
still more distinctly. A Sovereign who was a de- 
mocracy commenced, and a Sovereign who was a 
despot completed, the Codification of the laws of 



896 ANALYSIS AND HISTORY. lect. xra, 

France. There had never before in the modern world 
been so striking an exemplification of the proposition 
that, what the Sovereign permits, he commands, be- 
cause he could at any time substitute an express com- 
mand for his tacit permission, nor so impressive a 
lesson in the far-reaching and, on the whole ; most 
beneficial results which might be expected from the 
increased activity of Sovereigns in legislation proper. 

No geniuses of an equally high order so completely 
divorced themselves from history as Hobbes and 
Bentham, or appear, to me at all events, so completely 
under the impression that the world had always been 
more or less as they saw it. Bentham could never 
get rid of the idea that imperfect or perverse appli- 
cations of his principles had produced many things 
with which they had nothing whatever to do, and I 
know no more striking instance of an historical mis- 
conception (though at the time a very natural one) 
than Hobbes 's comparison of privileged corporations 
and organised local groups to the parasites which the 
physiology then becoming fashionable had shown tc 
live in the internal membranes of the human body. 
We now know that, if we are forced to use a physiolo- 
gical illustration, these groups must rather be com- 
pared to the primary cells out of which the whole 
human body has been built up. 

But, if the Analytical Jurists failed to see a great 
deal which can only be explained by the help of his- 



lect. xm, INFLUENCE OF ANALYTICAL SYSTEM. 397 

tory, they saw a great deal which even in our day is 
imperfectly seen by those who, so to speak, let them- 
selves drift with history. Sovereignty and Law, 
regarded as facts, had only gradually assumed a 
shape in which they answered to the conception of 
them formed by Hobbes, Bentham, and Austin, but 
the correspondence really did exist by their time 
and was tending constantly to become more perfect. 
They were thus able to frame a juridical termino- 
logy which had for one virtue that it was rigidly con- 
sistent with itself, and for another that, if it did not 
completely express facts, the qualifications of its accu» 
racy were never serious enough to deprive it of value 
and tended moreover to become less and less important 
as time went on. No conception of law and society 
has ever removed such a mass of undoubted delusion. 
The force at the disposal of Sovereigns did in fact act 
largely through laws as understood by these Jurists, 
but it acted confusedly, hesitatingly, with many mis- 
takes and vast omissions They for the first time 
saw all that it was capable of effecting, if it was ap- 
plied boldly and consistently. All that has followed 
is a testimony to their sagacity. I do not know a 
single law-reform effected since Bentham's day which 
cannot be traced to his influence ; but a still more 
startling proof of the clearing of the brain produced 
by this system, even in an earlier stage, may be found 
in Hobbes. In his ' Dialogue of the Common laws,' he 



^98 LEGISLATION IN MODERN STATES. LECT. xth, 

argues for a fusion of law and equity, a registration 
of titles to land, and a systematic penal code — three 
measures which we are on the eve of seeing carried 
out at this very moment. 

The capital fact in the mechanism of modern 
States is the energy of legislatures. Until the fact 
existed, I do not, as I have said, believe that the 
system of Hobbes, Bentham and Austin could have 
been conceived ; wherever it exhibits itself imper- 
fectly, I think that the system is never properly 
appreciated. The comparative neglect with which 
German writers have treated it seems to me to be 
explained by the comparative recency of legislative 
activity in Germany. It is however impossible to 
observe on the connection between legislation and 
the analytical theory of law without having the 
mind carried to the famous addition which Bentham 
and Austin engrafted on the speculations of Hobbes. 
This addition consisted in coupling them with the 
doctrine or theory of utility — of the greatest happi- 
ness of the greatest number considered as the basis of 
law and morals. What, then, is the connection, essen- 
tial or historical, between the utilitarian theory and 
the analytical theory of law? I certainly do not 
affect to be able, especially at the close of a lecture, to 
exhaust a subject of such extent and difficulty, but 
I have a few words to say of it. To myself the 
most interesting thing about the theory of Utility is 



lect. xiji. THE UTILITARIAN PHILOSOPHY. 399 

that it presupposes the theory of Equality. The 
greatest number is the greatest number of men 
taken as units; 'one shall only count for one/ said 
Bentham emphatically and over and over again. In 
fact, the most conclusive objection to the doctrine 
would consist in denying this equality ; and I have 
myself heard an Indian Brahmin dispute it on the 
ground that, according to the clear teaching of his 
religion, a Brahmin was entitled to twenty times as 
much happiness as anybody else. Now how did 
this fundamental assumption of equality, which (I 
may observe) broadly distinguishes Bentham's theo- 
ries from some systems with which it is supposed 
to share the reproach of having pure selfishness for 
its base — how did it suggest itself to Bentham's 
mind ? He saw plainly — nobody more clearly — 
that men are not as a fact equal ; the proposition 
that men are by nature equal he expressly denounced 
as an anarchical sophism. Whence then came the 
equality which is a postulate of his famous doctrine 
about the greatest happiness of the greatest number ? 
I venture to think that this doctrine is nothing more 
than a working rule of legislation, and that in this 
form it was originally conceived by Bentham. As- 
sume a numerous and tolerably homogeneous com- 
munity — assume a Sovereign whose commands take 
a legislative shape — assume great energy, actual or 
potential, in this legislature — the only possible, the 



BENTHAM AS A MORALIST. tECI . ^ 

only conceivable, principle which can guide legisla- 
te on a great scale is the greatest happiness of the 
greatest number. It is in fact a condition rf 
latum which, like certain characteristics of laws has 
grown out of the distance from which sovereign 
power acts upon subjects in modern political 1 
eieties, and of the necessity under which it is thereby 
placed of neglecting differences, even real differences 
between the units of which they are composed. Ben-' 
tham was in truth neither a jurist nor a moralist in 
he proper sense of the word. He theorises not on 
law but on legislation ; when carefully examined, he 
may be seen to be a legislator even in morals. No 
doubt his language seems sometimes to imply that 
he is explaining moral phenomena ; in reality he 
Wishes to alter or re-arrange them according to a 
working rule gathered from his reflections on leg- 
ation. This transfer of his working rule from 
legislation to morality seems to me the true ground 
of the criticisms to which Bentham is justly open 
as an analyst of moral facts. 



INDEX 



ACCEPTANCE 

\ CCEPTANCE of stock, effect of, 163 ; 

Ijl not always voluntary, ib. ; by King 
of Eriu from the Emperor, 165 ; from 
the successor of St. Patrick, 166 

Agnatic kindred in Eoman law, 106, 112 

Aicill, Book of, 12 ; probably oldest of 
the Irish Law Tracts, 24 ; relates the 
story of Cormac, 37 ; advanced legal 
views of, 45 : on dog-fights and bees, 
46 ; on rule of legitimacy, 53, 59 ; on 
fuidhir tenancy, 174; on distribution 
of the Irish family, 208; on the 
Geilfine group, 219 

Aires, the nobles, 136 ; seven grades of, 
ib. 

Alfred, feud law of, 303 

Alienation of tribal lands, how limited, 
108; in Hindoo law, 109 ; in Russia, 
ib. ; decision of Madras High Court 
on, 110 

Analytical Jurists, the, 343 ; Bentham 
on legislation, Austin on jurispru- 
dence, ib. ; Hobbes on government, 
354 ; assertions 'rf. in regard to sove- 
reignty. 357 ; on force and order, 372 ; 
limits of analytical system, 385; in- 
fluence of the analytical system, 397 

Anglo-Norman settlement in Ireland, 
effects of, 54 

Argvll. Duke of, on the ' Eeign of Law,' 
373 

Aristocracy, modern, the rise of, 130 ; 
origi lal in some communities, 133 ; a 
sovereign government, 350 

Aryan customs, bond between East and 
West, 20. See Institutions. 

Athens, formed from a coalescence of 
village communities, 84 ; its empire 
not legislative, 385 



BENEFICES 

Augustus, Marriage Law of, 336 
Austin, John, unknown abroad, 343 ; 
his ' Province of Jurisprudence de- 
termined,' 345 ; nature of his proposi- 
tions, 346 ; his definition of sove- 
reignty, 347, 348 ; the individual or 
collegiate sovereign, 349 ; various 
forms of monarchy, 350 ; the govern- 
ment of Great Britain, an aristocracy, 
ib. ; the sovereign determinate, 351 ; 
obeyed by the large majority, 352 ; 
must receive habitual obedience, 353 ; 
difficulty as to obedience to the See of 
Rome, ib. ; uncontrolled by any human 
superior, ib. ; compared with Hobbes, 
354, 356 ; force of society, 358 ; 
sovereignty an abstraction, 359 ; eli- 
mination of historical influences, 360 ; 
scientific method, 361 ; law depend- 
ent upon sovereignty, 362 ; right, 
duty, and punishment, 363 ; cus- 
tomary law, ib. ; sovereigns command 
what they permit, 364 ; the Greek 
tyrants, 365 ; theory of morality, 
366, 367 ; his utilitarianism, 368 ; on 
law of God, 369 ; the most serious 
blemish in his work, ib. ; his analysis 
of extant governments, 376 ; on anar- 
chy, 377 ; on state of nature, 378 ; 
no sovereign in very small group, 
379 ; quotes Montesquieu, ib. ; on 
particular commands, 382; on cus- 
tomary law, 392 



BENEFICES, source of feudalism, 1 54 
Bentham, Jeremy, on evidence, 
49 ; deals with legislation rather than 
jurisprudence, 343 ; his influence 



D D 



402 



INDEX. 



BIETH 

on law reforms, 397 ; his working 
rule true in legislation rather than in 
morals, 400 

Birth and wealth, opposition between, a 
modern idea, 134 

Birthright, the reward of the distributer 
of an estate, 197 ; to be distinguished 
from primogeniture, ib. ; sometimes 
enjoyed by the younger son, ib. ; 
thus connected with borough English, 
ib. 

Bishops, Ancient Irish, multitude and 
servile position of, 235 ; dependent 
on religious houses, 236 ; religious 
kinship, 237 

Blackstone on borough English, 222 ; 
on hazards of taking distress, 273; 
his method opposed by Bentham and 
Austin, 347; his definition of law, 
371 

Bo-aire, or cow-nobleman, 135 ; an en- 
riched peasant, 165 

Borough English, 222 ; similar custom 
in law of Wales, 223 

Bracton on primogeniture, 125 ; on dis- 
traint, 270, 277 

Brahmius, the only true caste, 245 ; 
their dislike of woman's property, 
325 ; authors of ' Suttee,' 335 

Brehon Laws. See Irish Law Tracts 

Brehons, the, a class of professional law- 
yers, 24 ; hereditary, ib. ; compared 
with the Druids, 28, 32 ; universal 
referees, ib. ; their schools numerous, 
ib. ; their cosmogony, 34 ; the king 
and the brehon, 36 ; judges but not 
priests, 38 ; acted by arbitration, ib. ; 
on voluntary submission of litigants, 
43 ; declared law through hypothetical 
cases, 44 ; influence of their self-as- 
sertion, 51 ; with their pupils consti- 
tuted a true family, 243 ; incorrectly 
described as a caste, 244 ; became 
hereditary, 245 ; accompanied dis- 
trainer in action of distress, 286 ; 
equity and reasonableness displayed 
in the law of distress, 291 

Bride price, widely diffused Aryan cus- 
tom, 324 

Bryce, Mr., on influence of the Roman 
Empire, 165 

Burton, Mr., on leg : timacy in Scotland, 
60 ; on succession, 204 



CHIEF 

CiESAR, his description of the Celts 
in Gaul, 5 ; on the writing of the 
Gauls, 13 ; his account of the 
Druids, 28 ; of the three Celtic 
orders, 29 ; failed to observe the 
divisions of septs and families, 30 
found the Celts polygamous, 59 
on noble class among Celts, 132 
on the debtors of Celtic chiefs, 167 

Canon Law, origin of, 63 ; on consan- 
guinity, 213 

Capital, formerly more important than 
land, 168 ; in the hands of the nobles, 
169 ; source of power over the poorer 
classes, ib. 

1 Capitis Deminvtio,' of the Roman law, 
218 

Caste, origin of, 244 ; tendency of trades 
to become hereditary, 245 ; Brahmin* 
the only true hereditary caste, ib. ; 
resemblance to literary fosterage in 
the Brehon Tracts, 246 

Cattle, wealth in, 137 ; reward of ser- 
vice to the chief, 142 ; object of a 
Kafir chiefs retainers, 143 ; cattle 
stealing, 144 ; in Ireland a ' survival,' 
ib. ; importance of in early ages, 147 ; 
original ' capital,' ib. ; origin of pe- 
cunia, 148 ; their importance in Eo- 
man law and among the Hindoos, ib. ; 
most valuable when men settled to 
cultivate land, ib. ; measure of value, 
149 ; in Brehon laws, ib. ; value of, for 
labour in tillage, ib. ; cause of their 
protection in Rome and India, 150 ; 
Irish system of giving stock, 151 ; 
source of vassalage, 152 ; resembling 
commendation, 158 ; source of power 
to the nobles, 168 ; regulated by the 
Brehon laws, 169; distraint of, 262 ; 
impounding, 263 

Ceile, or Kyle, a vassal to the chief, 
158 

Celtic societies, 4 ; three orders of, 29 ; 
polygamy among, 59 ; land system, 
96 ; society described by Sir W. Scott, 
141 

Chief, Ancient Aryan, or King, appears 
as priest, judge, and captain, 35 

Chief, the e^ctive, succeeds the patri- 
archal power, 117; sometimes with 
Council of Kinsmen, ib. ; his status, 
119 seq. ; the source of primogeni- 
ture, 120; Irish tribal chief, 127; 
the Norman nobles as Irish chiefs., 



INDEX. 



40? 



CHRISTIANITY 

128 ; relations of chief and tribe, 
128 ; growth of his power over the 
land, 130; bio position in the Bre- 
hon laws, 132 ; necessarily rich, 
133 ; not in land, but in cattle, 134 ; 
power increased by giving stock, 157 ; 
right of refection, 161 ; employed the 
fuidhirs on his lands, 173 ; derived 
great increase of power by so doing, 
177 ; private estates of, 193 ; in- 
stances of estates divided by, 194 ; 
possessed power of distributing in- 
heritances, 196 ; his family venerated 
as representing the purest blood, 200 ; 
eldest relative preferred to eldest son, 
201 

Christianity introduced writing to the 
ruder nations, 13 ; afFected the Bre- 
hon laws, 55, 58 ; restrained the 
liberty of divorce, 60 

Church, Ancient Irish, 235 

Church, the Christian, its influence on 
contracts, 56 ; on wills and private 
property, 104 ; in favour of women, 
337 ; promoted dotation, 338 

Clans, Scottish, 5 

Code Napoleon, on personal revenge. 303 

Coin and Livery, oppressive nature of 
in Ireland, 128, 161 

Collective ownership of the soil, primi- 
tive and universal, 1 

Comitatus, the companions of the King, 
138; the Royal Household, 139. See 
Companions 

Commendation, effects of, 1 30, 1 54 ; ac- 
counted for, 155 ; illustrated in Bre- 
hon Tracts, 156; incurred by accept- 
ing stock, 1 65 

Companions of the King, 138 ; of Erin, 
139; of Iceland. 140 ; of Highland 
chiefs, 141 ; of Teutonic kings, ib. ; 
everywhere rewarded by gifts of land, 
ib ; and of cattle, 142; their status 
at first servile, 1 45 ; when free, not 
the king's near kindred, ib. 

Compurgation, an ancient test of truth, 
48 

Consanguinity. See Kinship 

Contracts, conception of. due to the 
Church, 56 ; influence of the Church 
upon, 104 

Contributory negligence, principles of in 
ancient Irish laws, 45 

Coote, Mr., on origin of English insti- 
tutions, 295 



DUBHTHACH 

Corus Bescna, one of the Irish Law 
Tracts, 56; deals chiefly with son- 
tracts, ib. and limitations of contract, 
58; on tribal property, 103; bias 
of author towards the Church, 104; 
on alienation of tribal land, 111, 191 

Coshering, oppressive nature of in Ire- 
land, 1-28, 161 

Co-tenancy, Irish law of, 112 

Cultivating groups, 113 

Cumhal, a measure of value, 149 ; ori- 
ginally a female slave, ib. 

Custumals, French manuals of feudal 
rules, 6 



DAERSTOCK Tenure, Law of, 152, 
158; reduced the vassals to servi- 
tude, 1 59 ; often became permanent, 
162 

Dasent, Mr., his history of Burnt Njal, 
140 ; on Norse customs, 288 

Davis, Sir J., on Irish law, 18 ; on 
Irish Land, 98 ; on Irish oppression, 
127 ; on right of refection, 161 ; de- 
nounces the Eric-Fine, 170 ; on 
Tanistry, 205 ; on Gavelkind, 185, 
206 ; on degeneracy of the Normans 
settled in Ireland, 247 

'Dharna,' the Hindoo custom of sitting, 
40, 297, 298 ; Lord Teignmouth's ac- 
count of, 299 ; sanctions of, 300 ; 
modern prohibition of, 301 ; survives 
in native Indian States, 304 

Distress, Law of, 8 ; forms a large part 
of Brehon law, 39. See Legal Reme- 
dies 

Dithim, delay in pound, 281 

Ditmarsh, Aristocracies in, 230 

Divorce, the liberty of, facilitated the 
introduction of monogamy, 60 ; re- 
strained by Christian morality, ib. 

Doniol, on English copyholds. 125 

Dotation, compulsory in Roman Law, 
336 ; promoted by the Christian 
Church, 338 ; its power in France, 
339 

Druids, mentioned in the Irish Law 
Tracts, 28 ; described by Csesar and 
Strabo, ib. ; their functions, 31; re- 
sembled the Brehons, 32 ; believed 
in the immortality of the soul, 40 

Dubhthach, compiler of the Senchue 
Mor, 22 ; blessed by St. Patrick, ib. 
resembles the chief Ituid rf Caesar. 33 



DD2 



404 



INDEX, 



DUGMORE 

Dugmore, Rev. H., on the retainers of 
Kafir chiefs, 143; on Kafir law 
suits, 302 

Dupin, M., on French house-communi- 
ties, 80 



EDWARD I., his decision in favour of 
Baliol, 204 
Elective headship, succeeds to the patri- 
archal power, 117 
Empires, Ancient (except the Roman) 
taxlevying rather than lawmaking, 
384 ; the Athenian Empire, 385 
English courts of justice active agents 
in working out changes of ideas, 229 

— emigrants in America adopted vil- 
lage communities, 94 

— law, contrasted with Irish, 43 ; case 
law, importance of, 47 ; careful- 
ness about facts, 48 

— settlers in India, reputed harsh land- 
lords, 128 

— township, early representation of, 
221 

Equality of men, foundation of the 
utilitarian philosophy, 398 ; the con- 
trary opinion of a Brahmin, 399 

Eric-fine, a payment substituted for 
homicide, 23 ; its usefulness, 170 



FACTS, regard to, special character- 
istic of English justice, 48; of 
human nature intricately involved, 49 

Fair of Carman, 27 

Family, the smallest group, 66 ; ex- 
pands into the tribe, 69 ; recruited 
by strangers, ib. ; stages of transition, 
78 ; Hindoo joint family, ib. ; the 
common home and the common table, 
80; the 'fine' in Ireland, 90; the 
legal unit of the Brehon Tracts, 91 ; 
gave names to places, ib. ; ancient 
divisions of, 185; abnormal divisions 
of the Irish family, 208 seg. ; not 
according to degrees of blood, 211 ; 
the Roman family compared with 
the Irish, 218 ; older members some- 
times pensioners of, 219 ; custom of 
borough English, 224 ; enlargement 
of, by fictitious kinship in Rome, 
230 ; in Ireland, 231 ; the one con- 
dition of progress to civilisation, 
307 assumed as the starting point 



FREEMAN 

of both Roman and Hindoo law, ib. j 
the patriarchal family, 310; its 
power, ib. ; its decay, 311 ; its treat- 
ment of women, ib. 

Fasting, upon a debtor, 39 ; similar 
Hindoo custom of ' Dharna,' 40 

Father, power of the, the first and 
greatest landmark in legal history, 
216 

Feodum, Feud or Fief, etymology of, 
171 ; meant property or cattle, 172 

Feud, Alfred's Law of, 303 

Feudal dues, burden of in France, 124 

— law, errors of writers on, 119; of 
succession, its growth, 205 

— monarchy, exact counterpart of a 
feudal manor, 77 

— system, contrasted with the Roman 
Empire, 153 ; sources of, 154 ; its 
germs in ancient social forms, 166 

Feudalization of Europe, 85; has 
changed the • mark' into the manor, 
ib. ; makes the land the exclusive 
bond of union, ib. ; effect of ' com- 
mendation,' 86 ; dissolution of feudal 
groups, ib. ; growth of Feudal law of 
Succession, 205 
' Fine,' Irish term for family or sept, 
90 ; in the Brehon Tracts, the sept, 
105 ; also of all forms of the family, 
231 
Fine, pecuniary, a composition for 
homicide, 23 ; supplanted retalia- 
tion, ib. 
Five, importance of the number, 221 
Flaiths, minor Irish chiefs, 93 
Fosterage, widely diffused custom in 
Aryan communities, 241 ; specially 
strong in Ireland, 242 ; true explana- 
tion of, ib. 

— literary, treated of in Brehon Tracts, 
242 ; similar custom in India, 243 ; 
by Hindoo law carried succession to 
property, ib. 

France, subdivision of land in, 121 ; 
signorial monopolies in, 123; power 
of the custom of dotation in, 33'J 

Freeman, Mr., on territorial style of 
English kings, 73 ; of French kings, 
74 ; on the German village com- 
munity, 77 ; on English village com- 
munities, 82 ; on comparative politics, 
119 ; on classes, 131 ; on servila 
noliility. 145; on Mr. Coote's work 
on laws, 296 



INDEX. 



405 



FUIDHIRS 

Fuidhirs, stranger tenants, 93 ; ancient 
servile class, 172; strangers from 
o her tribes, 173; solely dependent 
upon the chief, 175 ; paid rack rent, 
to. ; similar classes in Orissa, 176 



GAIUS, discovery of his treatise, 
250 ; his account of ' Legis Ac- 
tiones,' 251 ; of the claimant's wand, 
254 ; on danger of miscarriage of 
law, 255 ; on the ' Pignoris capio,' 
258 ; on excessive subtlety of lawyers, 
273 

Gavelkind, in Ireland, described, 99, 
186; in Eussia, 189; difficulties 
respecting, 190 ; reintroduced to in- 
jure the Irish, 206 

Geilfine, principal division of Irish 
family, 209 seq. ; said to mean 
• hand -family,' 216 

Gillingham, origin of name, 83 

Glanville, on division of land, 125; on 
succession, 203 

Gossipred, or spiritual relationship, 
240 ; closely assimilated to blood 
relationship, 241 

Grote, Mr., on the natural priority of 
verse, 14 

Guilds, tribal origin of, 232 ; of Celtic 
etymology, ib. ; thought of as a 
family, ib. ; London companies, 233 



HAND, signifies power, in Aryan 
languages, 216 ; in Eoman law, 
217; paternal power, ib. 

Hatherley, Lord Chancellor, important 
judgment of, 4 

Heriot of copyhold, a survival of stock- 
giving, 162 

Hindoo Family. See Joint Undivided 
Family 

— Law, its prodigious antiquity, 309 ; 
changed and depraved by the Brah- 
mins, 326 ; development of, 327 ; 
effects of Brahminical religion on, 
331 ; regards property as for the 
benefit of the dead, 332 

Hobbes, on government, 354 ; his poli- 
tical opinions, 355 ; i.n the origin of 
society, 356 ; on the common law, 
363; a strong partisan, 395; his 
opportunities of observing foreign 
States, ib. ; his ' Dialogue of the 



rNSTITUTIOifS 

Common Laws.' 397 ; its remarkable 

foresight, 398 
Homer, his description of Achaean 

chiefs, 35 ; takes cattle as a measure 

of value, 149 
Homicide, composition for, 23 
Honour price, of chieftains, 136; of 

tenants, 160 
House community, in Dalma'ia and 

Croatia, 7 ; examined, 79 ; in Scla- 

vonia and in France, 80 
Humanity, or moral brotherhood, a 

modern conception, 65 
Hunter, Mr., on agricultural classes 

in Orissa, 176 
Hypothek, the law of, in Scotland, 277 



IDEAS, slow production of new, 225 ; 
especially in the East, 226 ; suddenly 
increased by a great genius, 227 ,* 
then stagnant for a century, 228 ; in 
fashion, ib. ; in kinship, ib. ; by de- 
grees transformed, 229 

Indebtedness of ancient democracies, 
167 

India, litigation in, 289 

Indian examples ot sovereignty, 379 ; 
the Punjaub, 380 ; Bunjeet Singh, 
381, 382 

Indian memorial verses, 71 

Indian Penal Code on ' Dharna,' 301 

Individual, the, gradually disengaged 
from the group, 329 

Institutions, new materials for the early 
history of, 1 ; property in land, ib. ; 
village communities, 2 ; joint un- 
divided family in India, 7 ; tine sub- 
stituted for homicide, 23 ; law 
schools of the Brehons, 33 ; tanistry, 
ib. ; law of distress, 39 ; ordeal and 
compurgation, 48 ; legitimacy, rule 
of, 53 ; wills, 56 ; contracts, ib. ; 
marriage, 58 ; divorce, 59 ; polygamy, 
ib. ; monogamy, 60 ; slavery, 62 ; 
kinship, or consanguinity, 64 ; land 
basis of settled society, 72 ; landed 
property, 77 ; periodical redistribu- 
tion of land, 81 ; feudalism. 85 ; 
property in severalty, 95 ; private 
property in land, 98 ; Irish gavel- 
kind, 100 ; rules of common tillage, 
110; cotenancy, 112; patriarchal 
power, 115 ; passes into elective 
headship, 117 ; the chief, 119 ; prinao- 



406 



INDEX. 



INTEEKATIONAL 

geniture, 120 ; aristocracy, 130 ; 
modern kingship, ib. ; -wealth in 
cattle, 134; commendation, 154; 
'giving stock,' 157; rent in kind, 
160 ; right of refection, 161 ; heriot 
of copyhold, 162; metayer tenancy, 
163 ; Eric-fines, 170 ; fuidhir tenants, 
172; rack rent, 175; gavelkind, 
186; birthright, 197; tanistry, 202; 
law of succession, 204; patria 
potestas, 218 ; law of inheritance, 
219 ; the number five, 221 ; borough 
English. 222 ; fictions of kinship, 
229 ; adoption, 230 ; guilds, 232 ; 
contract, 233 ; partnership, 234 ; 
agency, ib. ; ancient Irish Church, 
235 ; religious houses, 236 ; spiritual 
kinship, 237 : spiritual relationship, 
239 ; fosterage, 241 ; literary foster- 
age, 242 ; caste, 244 ; legal remedies, 
250 ; distraint, 261 ; replevin, 267 ; 
increased power of tribunals, 276 ; 
Irish law of distress, 280 ; voluntary 
jurisdiction, 286 ; distress an Aryan 
custom, 296; Dharna, 297; Kafir 
law suit, 302 ; feud law of Alfred, 
303 ; settled property of married 
women, 306 ; ' usurpation,' 316 ; 
divorce, 317; the dotal estate, 319; 
'Stridhan,' 321; bride price, 324; 
suttee, 335 ; dotation, 336 ; sove- 
reignty, 342, seq. ; the village council, 
388 ; custom in the eastern world, 
389 ; legislation in the western world, 
391 

International law, evidence furnished 
by, 73 

Irish estates, surrendered and regranted, 
207 

Irish Law Tracts, published by the 
Irish Government, 8 ; important in- 
formation respecting Celtic communi- 
ties, ib. ; known as the Brehon laws, 
9; compared with Roman law, 10; 
contain ancient nucleus with succes- 
sive interpretations, ib. ; authentic 
monuments of ancient Aryan institu- 
tions, 11; very slightly affected by 
the Roman Empire, ib. ; resemble the 
Hindoo law, 12 ; their probable date, 
ib. ; the Senchus Mor and the Book 
of Aicill, ib. ; partly in verse, 14 ; 
form of, 15; each the property of a 
family or school of law, 16 ; consist 
of text and commentary, ib. ; uncer 



IEISH 

tain date of existing manuscript^ 
17 ; their system, that condemned by 
Anglo-Irish legislation, ib. ; by 
Spenser and Sir John Davis, 18 ; 
analogy with early Roman, Hindoo, 
and Germanic law, 19; advanced legal 
doctrines of, 20 ; origin of Senchus 
Mor,.#>. ; legend of St. Patrick, 21 ; 
the law of nature and the law of the 
letter, 25 ; legislative character of, 
26 ; treat of miscellaneous subjects, 
33 ; importance of the law of distress, 
39 ; their sanctions, ib. ; fasting, ib. ; 
contrasted with Brahmin sanctions, 
41 ; with the responsa pri dentum 
of the Roman law, 42 ; with English 
law, 43 ; close approach to modern 
views, 45 ; minute on law of dog-fights, 
46 ; and bees, ib. ; authority of, 
whence derived, 50 ; affected by 
Christian morality and Roman law, 
55 ; on wills and contracts. 56 ; little 
affected by Christianity on marriage, 
58 ; on divorce, 59 ; on chastity, 61 ; 
on private ownership of land, 89 ; 
on the 'fine,' 91; suggest wide 
separation of races, 96 ; but resem- 
blances between Aryan sub races, ib. ; 
on private property in land, 98 ; on 
the tribe, 107; on co-tenancy, 112; 
on tribal ownership of land, 129; on 
transition to feudalism, 130 ; on 
position of chieftains, 132 ; on their 
wealth, 134; the Bo-aire, 135; how 
he becomes a nobleman, 136 ; account 
of the companions of the king, 140; 
their condition servile, 145 ; import- 
ance of horned cattle, 147; illustrate 
'commendation,' 156 ; on giving and 
receiving stock, 157; on right of re- 
fection, 161 ; on oppressiveness of 
'giving stock,' 164; regulated the 
proportion of stock and rent, 169; 
on fuidhir tenancy, 174: on descent 
of lands, 190 ; in favour of individual 
descent of property, 193 ; on the dis- 
tribution of the Irish family, 208 
seq.; on ' Geilfine,' 216: expansive 
use of the term ' fine,' 231 ; on tribal 
relations of ecclesiastical bodies, 236; 
on fosterage, 241 ; on literary foster- 
age, 242 ; law of distress, 279 ; re- 
semblance to Teutonic and English 
law, 282, seq. ; modern features in, 290 
Irish tribe, agrarian constitution of, 92 



INDEX. 



407 



JOHN 

JOHN, King, the first who called 
himself king of England, 73 

Joint Undivided Family of the Hir doos, 
7 ; marked by the common hearth 
and common meal, ib. ; the first stage 
of the community, 78 ; hound by a 
common ancestor, 106. 116; resembles 
the Irish gavelkind, 187; lands 
distributed per capita, 195 ; manager 
of the affairs of, variously appointed, 
200 ; dissolution of, by English 
courts, 206 ; their lands conferred on 
a single family or person, 270 

Jurisprudence, modern theories of, 87 ; 
the science of positive law, 362 

Justinian, Novel 118 of, on consan- 
guinity, 213; constitution of, 240 



KILKENNY, statute of, 18 
Kingly grants or charters, the 
great cause of interruption in English 
history, 233 
Kinship, or consanguinity, as the basis 
of society, 64 ; an actual bond of 
union, ib. ; primitive view of, 65 ; the 
only brotherhood recognised, ib. ; 
bond of Aryan, Semitic, and Uralian 
tribes, 66 ; abnormal conceptions of 
by other races, 67 ; tends to recogni- 
tion of common authority or power, 
68 ; artificial or adoption, 69 ; founda- 
tion of patriarchal power, 70 ; in 
settled communities gives place to the 
bond of land, 72 ; common territory 
substituted for common race, 75 ; by 
slow process at Athens and Eome, 
76 ; consequent changes from tribal 
to territorial sovereignty, ib. ; sur- 
vival of kinship in Ireland and Scot- 
land, 89 ; clearly stamped on the 
Brehon law, ib. ; which applies the 
term fine, or family, to all the sub- 
divisions of Irish society, 90, 105 ; 
the chief, the common ancestor, 94 ; 
kinship, not land, the bond of the 
Irish tribes, 96, Mr. Morgan on, 
212 ; descriptive system of, 2.13 ; 
classificatory system of, 214; single 
idea of relation between man and 
man in early times, 228 ; all others 
slaves or enemies, ib. ; fictitious 
assumptions of, 2?9 ; adoption, 230 ; 
in Irish tribes, 231 ; origin of guilds, 
232; of partnerships, 234; of agency, 



LEGAL 

ib. ; spiritual kinship. 23": spiritual 
relationship, 239 ; fosterage, 241 j 
literary kinship, 246; anificial kin- 
ship of Anglo-Norman settlers in 
Ireland, 247 



LAND, settlement on, a bond of union, 
70 ; manner of, described by Indian 
poetess, 71 ; takes the place of kin- 
ship, 72 ; indicated by the term 
fatherland, 74 ; slowly supplanted 
the bond of kinship in Hellenic and 
Latin communities, 75 ; foundation 
of village communities, 76; periodical 
redistribution of, 81 ; the foundation 
of the feudal system, 85 ; liberated 
by the dissolution of that system, 86 ; 
in Ireland, private property in, 98 ; 
cheapness of land in early ages, 142 ; 
not so important as capital, 168; in 
very ancient times a drug, ib. ; de- 
scent by gavelkind, 186; natural 
communism in, 188 ; dissolved by 
gavelkind, 189; lands surrendered 
by Irish chiefs, and regranted on new 
tenure, 207 ; similar practice in India, 
ib. ; more satisfactorily in late en- 
franchisement of the Eussian serfs, 
208 

Landau, on noble class, 132 

Laveleye, on primitive forms of pro- 
perty, 3 ; on village communities in 
Java, 77 ; on house communities in 
Dalmatia, 79 ; on Swiss periodic 
allotments, 114 

Law of the market, 178 

— of nature and law of the letter, 25 

— whether force or order, 371 ; figura- 
tive use of the word, 372 ; ' the 
Reign of Law,' 373 ; in juridical 
sense, 374 ; early conceptions of, 
375 ; in ancient state of the world, 
383 ; in modern states, 391, 392 ; 
force and order, 394 

— English. See English Law 

— Hindoo. See Hindoo Law 

— Irish. See Irish Law Tracts 

— Roman. See Roman Law 

Lebor iih Huidre, an Irish MS. on co- 
tenancy. 1 14 

Legal remedies, primitive forms of, 250 
seq. ; law of distress, ib. ; legis ac- 
tiones of the Roman law, 251 ; equi- 
valent to procedure, ib. ; substi uive 



408 



LXDEX. 



LEGAL 

and adjective law, ib. ; legis actio 
sacranienti, 252 ; ancient dramatisa- 
tions, 253 ; the praetor as arbiter, ib. : 
demand before action, 254 ; the wand 
an ancient spear, ib. ; art of pleading, 
255 ; administration of justice, ib. ; 
sacramentum or stake, ib. ; origin of 
court fees, ib. ; dangers of miscar- 
riage, ib. ; origin of special pleading, 
256 ; judicis postulatio, ib. ; the 
conditio, or notice, ib. ; sponsio and 
restipulatio, 257 ; manus injectio and 
pignoris capio, ib. ; laying wager, 
259 ; seizure of goods, 260 ; distraint 
in Teutonic societies, 261 ; distress for 
rent, 262 ; replevin, ib. ; course of a 
distress. 263 ; the village pound, ib. ; 
antiquity of procedure in distress, 
265 ; traces of a foray, ib. ; inter- 
position of state authorit} 7 , 266 ; re- 
plevin, 267 ; weakness of ancient 
courts, 268 ; leges barbarorum on 
distress, 269 ; the Salic law, 270 ; 
ancient view of plaintiff and defend- 
ant, 272 ; excessive technicality of 
ancient law, 273 ; reasons for sur- 
vival of distress, 274 ; increase of 
the power of courts of law, 275 ; 
attachment, 276 ; modern theory of 
distress, 277 ; development of reme- 
dies, '278 ; similar legal remedies in 
the Irish ancient law, 279 ; th* 
Senchus Mor on the law of distress, 
ib. ; large space accorded to it, 280 ; 
epitome of its provisions, 2S0, 281 ; 
strong resemblance to English com- 
mon law, 282 ; to ancient Teutonic 
law, 283 ; points of difference, 284 ; 
questions respecting powers of Irish 
courts, 286 ; appear to have had only 
voluntary jurisdiction, ib. ; assumed 
elaborate organisation, 287 ; apparent 
■weakness of Irish courts. 288; similar 
instance of India, 289 ; litigation 
substituted for violence, ib. ; modern 
features in Irish law of distress, 290 
equity and reasonableness of, 291 
wrongful distress made felon v, 294 
distress a primitive Aryan custom 
296 ; Indian form of distress, 297 
improvement on older custom, 301 
Kafir law suit, 302; feud law of 
Alfred, 303 ; Dharna resorted to for 
arrears of pay, 304 ; the same stated 
of 'pignoris capio' by Graiug, 305 



MORGAN 

' Leges Barbarorum,' on distress, 269 
Legislation by a learned class, 27 
Legislatures, origin of Aryan, in village 

councils, 388 
Le Play, M., on French village com- 
munities, 6 
' Liber Hymnorum,' on Irish cotenancy, 

113 
Literary Fosterage. See Fosterage 
— influence anciently very great, 51 
Littleton, on borough English, 222 
Locke, on the origin of society, 357 
London Companies, the, contain traces 
of ancient brotherhood. 233 



MACAULAY, Lord, on literary in- 
fluence, 52 

Madras High Court on alienation of 
tribal lands, 110; on ' Stridhan,' 323 

Malberg Gloss, the, 256 

Manu, Law Tracts, attributed to, 243, 
298; on 'Stridhan,' 322 

Marriage, early Roman, 312; middle 
Eoman, 315; facility of divorce, 317; 
settlement almost universal, 320 ; 
Hindoo law of. 321 scg. ; develop- 
ment of law checked by Brahminical 
influence, 32j 

Maurer, G-. L. von, on Teutonic com- 
munities, 3 ; on rules of tenure, 100 ; 
on noble class, 132 

McEgan, Hugh, his copy of the Sen- 
chus Mor, 17 ; an hereditary Brehon, 
36 

McLennan, Mr., on primitive marriage, 
215; on marriage ceremonies, 253 

Measure of Damages, sound principles 
of, in the Book of Aicill, 45 

Metayer tenancy, 163 

Modern States, formation of, 385 ; 
coalescence of original groups, 386 ; in 
Attica and Eome, ib. ; the effect of 
Eoman legislation upon. 390 ; cus- 
tomary law broken up, 391 ; legisla- 
tive character of, 392 ; force of law 
in, 393 ; the energy of legislatures 
the distinguishing characteristic of, 
398 

Monogamy, supplanted polygamy 
through divorce, 60 

Montesquieu, on political power. 379 

Morgan*- Mr. L., on consanguinity, 63, 
212 ; on names of relationship. 70 



INDEX. 



409 



NAMS 

NAMS, taking, the practice of dis- 
tress, 262 ; origin of 'Withernam/ 
263 ; before the Conquest. 270 

Nasse, on land communities, 4 ; on 
rules of tenure, 100 

Nationality, a modern revival of kin- 
ship, 75 

Niebuhr, on Teutonic aristocracies, 
230; his discovery of the MS. of 
Gaius, 250, 308 

Nobility, origin of, 132; definition of 
by Paul of Eussia, 137; popular 
theory of, 138; by royal grant, a 
modern institution, ib. 

Nomad tribes, 72 



0'BKIEN, Connor More, division of 
an estate by, 194 
O'Brien, Donogh, division of an estate 

by, 194 
O'Neill, case of, 53 
Ordeal, an ancient test of truth, 48 
Ownership and occupation, 102 



PAKAGE, a French noble tenure, 
205 
Partnership, founded on brotherhoods, 
234 ; Koman unlimited liability in, 
•&. 
Patriarchal power, 115; its gradual 
transmutation, 116 ; passes into elec- 
tive headship, 117; revives when 
expansion of the tribe is checked, 
118; in Aryan races, ib. ; over ani- 
mate and inanimate property, 310 ; 
several powers blended in, 313 ; their 
subsequent separation, 314 ; the 
germ of all permanent power, 379 
Patterson, Mr., on house communities, 

79 
4 Per capita,' division by, 188, 195, 328 
'Per stirpes,' division by, 188, 195, 328 
* Pignoris Capio,' 257 seq. ; seizure of 

goods, 260 
Pliny, his Natural History a source of 

errors, 29 
Poste, Mr., on Plato's laws, 258 
Pound, the village, antiquity of, 263 
Primitive ideas, growth and diffusion 
of, 225 seq. ; barrenness of primitive 
imagination, ib. ; slowly transformed, 
229; consanguinity the only bond, 
230 



EC3IAN 

Primogeniture, the result o F the status 
of the chief, 120 ; limited applica- 
tion of, in ancient France, 122; 
general in England, 1 24 ; different from 
' the birthright,' 197 ; one of the most 
difficult problems, 198 ; unknown to 
antiquity, ib. ; must be connected 
with the irruption of the barbarians, 
199 ; ancient forms of, ib. ; a product 
of decaying leadership, 202; trans- 
formation of, 203 ; affected by deci- 
sion of the controversy between 
Bruce and Baliol, 204 

Progress, slowness of, 227 

Property in land, beginnings of, 1 ; in 
Eussia, distributed among groups of 
kinsmen, 2; Sohm, on early history 
of, 3 ; Laveleye. on primitive forms 
of, ib. ; affected by the dissolution of 
the feudal system, 86 ; persistency of 
feudal theories respecting, 88 ; private 
ownership in ancient Ireland, 89 ; 
property in severalty, 95 ; most com- 
plete in the case of chiefs, ib. ; double 
origin of, 115 ; affected by increasing 
authority of the chiefs, ib. ; two-fold 
origin of, 120 ; subdivision of, in 
France before the Eevolution. 121 ; 
English conception of absolute pro- 
perty in land, 126 ; rack rent in 
Ireland, 127 ; by gavelkind, 186 ; pro- 
bably by various tenures, 192 ; suc- 
cessive modes of division, 195; dis- 
tribution of, during owner's life, 196 

Punchayet, native Indian jury, 221 



EACE, theories of, 97 
Eaces, the three, with which alone 
jurisprudence deals, 65 ; other abnor- 
mal races, 67 

Back rent, 175. See Eents 

Eeligious houses in Ireland, groups or 
families of, 237 

Eenan, M., on Semitic village commu- 
nities in Africa, 77 

Eents, the three, of the Brehon Tracts, 
175; questions of, in early Irish 
history, 177 ; commented on by 
Spenser and Sir J. Davis, 179 ; their 
testimony explained, 180; due to the 
increase of fuidhir tenants, 182 seq. 

Eogers, Mr., T., on cheapness of land, 
142 

Eoman Empire, influence of the, on he 



410 



INDEX. 



ROMAN 

modern "world, 20 ,' distinctively 
legislative, 330 ; destructive of local 
customs, ib. 

Roman law, Aryan customs of the 
Twelve Tables, 9 ; enlarged by in- 
terpretations, 10 ; compared with 
Irish law, ib. ; extended by ' responsa 
pmdentum,' 42 ; enforced by strong 
government, ib. ; affected the Brehon 
laws, 55; agnatic kindred in, 106; 
importance of its history, 308 ; the 
chief branch of Latin literature, ib. ; 
Niebuhr's discovery- of the work of 
Graius on, 308, 3U9 ; usucapion, or 
prescription, 315 ; progressive steps 
of, on marriage, 320 ; made dotation 
compulsory, 336 

Roman plebs, its final victory, 76 ; the 
foundation of the Eoman Empire, ib. 

Rome formed by a coalescence of 
village communities, 84 

Rundale holdings in Ireland, 101 

Runjeet Singh, a sovereign, but not a 
legislator, 381, 382 

Russia, village communities in, 2 

Russian serfs, enfranchisement of, 208 



SACRAMENTUM, money staked in 
litigation, 255 
Saer Stock Tenure, law of, 152, 158; 

bound the receiver to pay homage, 

159 
Sanctions of Brehon law, 39 
Scotland, peculiar tenure of land in, 

101 
Scott, Sir "Walter, his picture of Celtic 

society in ' Waverley,' 141 ; of the 

primitive chief, 144 
' Seds,' an Irish measure of value of 

cattle, 149, 160 
Senchus Mor, age of the, 1 2 ; origin of 

the, 21 ; on the three rents, 175 ; on 

fosterage, 241 
Sept, the Irish, 186 
Sexes, relations of the, in Brehon law, 

59 ; greater purity of the modern 

Irish, 61 
Skene, Mr. "W. F., on the Highlanders 

of Scotland, 6, 101, 187 
Slavery, effects of Christianity upon, 

62 ; ancient importance of, for tillage, 

150 
Socage, the tenure of the free farmer, 

120 



TANAISTS 

Social connexions, Irish k/w tract on, 61 

Sohm, on early history of property, 3 ; 
on social organisation, 202 ; on the 
Salic law, 271 ; on risks of distraint, 
273 ; on Prankish popular courts, 
288 > 

Sovereignty, tribal and territorial, 76 ; 
doctrines of the analytical jurists on, 
342 seq. See Austin 

Spenser, Edmund, on Irish law, 18 ; on 
Irish land, 98 ; on Irish oppression, 
127; on 'right of refection,' 161; 
denounces the Eric-fines, 170 ; on 
oppressive rents, 179 ; on election of 
chief, 201 ; on law of distress, 292 

Stephen, Mr. Eitzjames, on dormant 
anarchy, 377 ; on sovereignty, 383 

Stock, Irish system of giving, 151 ; 
principal wealth of chiefs, 157 ; 
Saer and Daer tenure by, 158 ; 
effect of accepting, 163 

Stokes, Mr. W., on the age of the 
' Senchus Mor,' 12 ; on Irish co- 
tenancy, 113; on ' Geilfine/ 216; on 
sitting ' Dharna,' 297 

Strabo, on the Druids, 28 

Stridhan, in Hindoo law, 321 ; signifies 
' woman's property,' ib. ; limited by 
the Anglo-Indian courts, 323 

Stubbs, Mr., on Church lands, 104 ; on 
the 'companions' of English kings, 
139 ; on feudalism, 154 

Succession, law of, in feudalised Europe, 
205. See Institutions 

Sullivan, Dr., on Irish law, 25 ; on the 
Irish ' fine,' 90, 92 ; on Celtic land 
system, 96 ; on Irish land, 99 ; his 
translation of Brehon tract, 140 ; on 
fuidhir tenants, 182; on gavelkind, 
191 ; on tribal origin of guilds, 232 ; 
on Irish courts, 287 ; on ' dynamical 
influence,' 296 

Survivals, in theory of land, 88 ; in 
names of places, 92 ; in cattle-steal- 
ing, 144 

Suttee, found to be a modern innovation, 
326 ; due to the dislike of the Brah- 
mins to the holding of property by 
women, 335 



TACITUS, on German nobility, 131; 
on the king's companions, 139 
Tanaists, the, acted as judges 37; mode 
of appointment of, 201 



IKDEl 



411 



TANISTBY 

Tanistry, 33, 99, 185, 192, 202 ; abo- 
lition of, 205; its connection with 
primogeniture, 208 

Teignmouth, Lord, his description of 
1 Dharna,' 298 

Tenants at will, 178 

Testamentary jurisdiction, its origin in 
ecclesiastical courts, 332 

Teutonic forms, ancient, of distraint, 
270 

Tocqueville, on signorial monopolies, 
123 

Todd, Dr., his life of St. Patrick, 236 ; 
on families of religious houses, 
237 

Tooting, origin of the name, 83 

Tribe, the, 98 ; connected with the land, 
ib.; of the Brehon Tracts, 107; 
limitation of alienation of land, 108 ; 
expansion of the family into, 116; 
transition to an elective headship, 
117; a source of institutions, 119 ; 
owners of the land, in the Brehon 
Tracts, 129; importance of cattle to, 
149 ; power to regulate stock giving, 
163 

Troplong, M., on Christian influence 
on laws, 61 

Tylor, Mr., on survivals, 144 ; on finger- 
counting, 221 ; on primitive imagina- 
tion, 225 



UFFINGHAM, origin of the name, 
83 
Utilitarian philosophy, the, founded on 
personal equality, 399 ; contrary 
doctrine of the Brahmins, ib. 



VEESE, necessity of, before the art 
of writing, 14 ; Indian memorial 
verses, 71 
Village communities, in Russia, 2 ; in- 
creased attention given to them in 
India, 4 ; Celtic, slight information 
respecting, ib. ; described by Csesar, 
5 ; in France, 6 ; in Dalmatia and 
Croatia, 7 ; important information 
furnished by the Irish Law Tracts, 8 ; 
founded upon land settlement, 76 ; 
the origin of landed property, 77 ; 
not exclusively Aryan, ib. ; found in 
Java and northern Africa, ib. ; in 
Eussia and India, 78 ; described, 8 ; 



WOMEN 

Indian, held together by the land, 
82 ; rapidly disappearing, ib. ; distinct 
from ' natural communism,' 83 ; 
coalescence of, the origin of Athens 
and Eome, 84 ; course of their trans- 
formation, ib. ; due to feudalisation, 
85; adopted by first English emi- 
grants in New England, 94 ; distri- 
buted lands per capita, 195 ; various 
powers blended in a single idea, 
314 ; formed the Hellenic world and 
the Eoman Empire, ib. ; in India and 
in England compared, 389 

Village council, the, the original legis- 
lature of the Aryan races, 388 ; 
source of all the most famous legisla- 
tures of the world, ib. ; its powers 
judicial rather than legislative, 389 

Village pound, the oldest institution in 
the country, 263 



WAGEE, common way of postponing 
a dispute, 259 

Wales, custom in, similar to borough 
English, 223 

Welsh laws, published by the Eecord 
Commission, 6 

Will, conception of, in Irish Law Tracts, 
due to the Church, 56 

Women, married, settled property of, 
306 ; a very old discussion, ib. ; nearly 
as old as the 'family,' 307; long 
recognised by Continental States, ib. ; 
ideas of Eoman and Hindoo societies 
concerning, 310 ; in the patriarchal 
family, 311 ; powers of guardians, 
312 ; early Eoman marriage, ib ; the 
wife's property absolutely the hus- 
band's, ib. ; change made by ' usur- 
pation,' 316 ; provision of the 
* Twelve Tables,' ib. ; marriage a 
voluntary society, terminable at 
pleasure by divorce, 317 ; severer 
principles of Christianity, ib ; be- 
ginning of settled property of married 
women, 318; French regime of biens 
separes, ib. ; the dotal estate, 319; 
parapherna, ib. ; lately arrived at in 
England, 320 ; Eoman marriage set- 
tlement almost universal, ib. ; simple 
form of, 321 ; followed in the Code 
Napoleon, ib. ; Hindoo law of ' Strid- 
han,' ib. ; limited by the Anglo- 
Indian courts, 323 ; prehistoric origin 



412 



INDEX. 



WOMEN 

of, 324 ; Brahmins' dislike of woman's 
property, 325 ; gradual enfranchise- 
ment of women, 326 ; Brahmin view 
of woman's property, 333 ; rights of 
the childless widow, 334 ; suttee in 
Bengal promoted by the Brahmins, 
335 ; Eoman compulsory dotation, 
336 ; law of Augustus, ib. ; law of 
the Christian Church 337 ; doarium, 



ZEMINDAR 

338 ; enfranchisement of wnman a test 
of civilisation, 339, 340 



"TOOTING, Arthur, on France, 121 

F7EMINDAK, or landlord, tenante i+ 
Li pendent on, 184 



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